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  1. General. These terms and conditions of sale (“Sales Terms”), including any Seller quotation and attachments thereto (the “Quote” and, collectively with the Sales Terms, this “Agreement”), apply to the purchase and sale of products and/or services of Metalenz, Inc. (“Seller”) by the counterparty named in the Quote (“Buyer”). This Agreement supersede all printed terms and conditions on any purchase order issued by Buyer to Seller and constitutes the entire agreement between the parties. No modification or deletion of any provision hereof or any additions hereto shall be binding on Seller unless agreed to in writing by a duly authorized representative of Seller. Failure of Seller to object to the provisions contained in any order or other writing of Buyer shall not be construed as a waiver of these Sales Terms nor an acceptance of any terms and conditions of Buyer. Buyer shall be deemed to have accepted this Agreement if Buyer expressly agrees to the Quote in writing or accepts any shipment of any products and/or services (the “Products”) to which this Agreement relates. Nothing in this Agreement shall limit or prevent Seller from selling the same or similar products and/or services to the Products to any third-party and this Agreement does not create an exclusive arrangement between the parties.
  2. Acceptance of Orders. Buyer shall purchase Products by issuing a written purchase order signed by an authorized representative, indicating specific Products, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifications if applicable, and any other special instructions (a “PO”). Any contingencies contained on such PO are not binding upon Seller. All orders are subject to receipt of initial payment due, Buyer’s ability to meet Seller’s credit requirements and acceptance by Seller.
  3. Price. Buyer shall pay the full amount of the invoiced charges without any set off or deduction in the currency as stated in the PO within thirty (30) days from the date of the invoice. All sales, excise, VAT, and use taxes, including custom duties, and tariffs, which are presently or may hereafter be imposed by any taxing or other governmental authority (collectively, “Taxes”) are not included in the price of the Products and if such Taxes are not separately stated and collected at the time of payment of sale price, Buyer will indemnify and hold Seller harmless from payment of any such Taxes.  The price of Products sold for export does not include import duties, if any, and Seller reserves the right to claim draw back. Buyer agrees to assist in Seller’s efforts to obtain draw back and to furnish Seller with all necessary documents and, if Products are transferred for export to required exporter, to furnish proof of such exportation. 
  4. Payment Terms. Each shipment shall be considered a separate transaction and payment shall be made accordingly provided that any initial upfront pre-payment specified in the Quote (“Pre-Payment”) shall be due and payable in advance. Unless otherwise agreed in writing by Seller, payment for Products shall be made no later than thirty (30) days from date of Seller’s invoice, as described in Section 3.
  5. Title and Responsibility for Products. All Products purchased hereunder shall be shipped F.O.B. Seller’s facility. Title and risk of loss or damage to Products shall pass to Buyer on delivery to a common carrier at Seller’s facility. It shall be the Buyer’s responsibility to insure the Products against the risk of loss or damage. Unless otherwise specified by Buyer, shipment will be made by a carrier of Seller’s selection.
  6. Performance and Shipping. Performance and shipping dates specified or communicated by Seller to the Buyer (if any) are estimated dates only and the failure to perform or ship on such dates shall not be considered a breach by Seller. With respect to any Product that is being built to specification or developed based on input from the Buyer, Seller makes no guarantee that any such Product can be developed. All claims for shortage of Products ordered or for incorrect charges must be presented Seller within ten (10) days after receipt by Buyer of the particular shipment of Products. Buyer shall be responsible for all charges. Unless given written instruction, Seller shall select the carrier.  All transportation charges shall be levied by Seller and paid by Buyer on receipt of invoice.  Seller shall not be liable for damages or penalty for delay in delivery or for failure to give notice of any delay, and the carrier shall not be deemed to be an agent of Seller.  Seller has the right to make partial deliveries. Acceptance by Buyer of each delivery shall constitute a separate agreement. In the event of failure to pay according to the terms of this Agreement, further deliveries may be suspended.

7.               Cancellation. Buyer may not cancel, terminate, suspend performance of, or issue a hold on, any order, in whole or in part, without the prior written consent of Seller, which consent, if given, shall be upon terms that will compensate Seller for any loss or damage therefrom, including but not limited to, the price of Products shipped to, manufactured for, or held separately for, the Buyer, and loss of profits, incurred costs, and a reasonable allocation of general and administrative expenses relating to the Products.

8.               Limited Warranty And Limitation Of Liability. Seller’s sole liability and Buyer’s exclusive remedy under this limited warranty will be limited to the repair or replacement, at Seller’s election, of material returned to Seller at Buyer’s expense and which in the reasonable opinion of Seller is determined to be defective in workmanship or material or not in conformance with mutually agreed written specifications. Buyer must promptly notify Seller of any claim under this warranty no later than ten (10) business days from delivery of Product to Buyer. No warranty is provided for any Product for any claim not made within such ten (10) business days. Seller reserves the right to issue a credit note (at Seller’s sole discretion) for any defective Product as an alternative to repair or replacement. Any additional warranties by Buyer in dealing with its customers shall be Buyer’s exclusive responsibility, unless such enlargement is agreed in writing in advance by Seller and Buyer. Seller shall not be responsible for any loss, damage, theft or destruction of any materials supplied by Buyer. The warranty provided herein excludes and does not cover any damage to Products or parts thereof which has been caused by accident, modification (other than by Seller), disassembly, misuse, use or testing in applications which exceed the Product specifications or ratings, neglect, improper installation, abuse, or use in hazardous activities. Buyer itself must make all claims under this warranty; no claim will be accepted from any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, AFFIRMATIONS OF FACT OR PROMISES BY SELLER WITH REFERENCE TO THE PRODUCTS, INCLUDING NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT, ALL OF WHICH ARE HEREBY DISCLAIMED. EXCEPT FOR THE EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY SET FORTH IN THIS SECTION 9 ABOVE, SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR ANY THEORY OF CLAIM OR LIABILITY, INCLUDING BUT NOT LIMITED TO THOSE BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE IN LAW OR IN EQUITY FOR ANY PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO REAL OR PERSONAL PROPERTY RESULTING DIRECTLY OR INDIRECTLY FROM THE PRODUCT OR FOR ANY CONSEQUENTIAL, SPECIAL INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, LOST PROFITS OR SALES, LOST GOODWILL, LOSS OF USE OF OR DAMAGE TO PRODUCTS OR SUPPLIES, EXCESSIVE OR INCREASED COSTS OF OPERATION, LABOR, SUBSTITUTE PRODUCTS OR FACILITIES OR CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL THE TOTAL COLLECTIVE CUMULATIVE LIABILITY OF SELLER, ITS EMPLOYEES, OFFICERS, AGENTS AND DIRECTORS EXCEED THE AMOUNT PAID TO SELLER FOR PRODUCTS FROM WHICH SUCH LIABILITY AROSE.

10.             Excusable Delays/Force Majeure. Seller shall not be liable for damages resulting from delay of delivery due to causes beyond Seller’s control, including, but not limited to acts of God or of the public enemy, acts or omissions of Buyer, design changes agreed to by the parties, acts of the Government, fires, floods, pandemics, epidemics, quarantine restrictions, public health emergencies, strikes, labor disputes, freight embargoes, and unusually severe weather. In the event of any such delay, the Buyer will be notified (to the extent practicable) and the date of delivery shall be extended for a period equal to the time loss by reason of such delay.

11.             Compliance with Laws. Seller makes no promise or representation that the Products shall conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as specified in writing by Seller. Prices do not include the cost of any such related inspections or permits. In connection with its purchase and use of the Products, Buyer shall comply with all applicable laws, including without limitation any export control laws. Each party represents that it is not named on any U.S. government denied-party list. Buyer shall not export Products to any U.S-embargoed country or in violation of any U.S. export law or regulation.

12.             Intellectual Property. As between the Parties, Seller owns and retains all right, title and interest in and to the intellectual property rights in and to the Products and any enhancements, modifications or derivative works thereof. Seller reserves the right to change or modify the specifications, design, drawings, and construction of any Products and to substitute other suitable material, unless otherwise specified in writing by Buyer in the PO. If drawings are furnished, they are submitted only to show general style and arrangement of the Products. It is agreed that Seller shall have the right to make changes or improvements in the design or construction of its Products without being obligated to install the changes or improvements on the Products purchased hereunder or others previously sold. Buyer shall not decipher, decompile, disassemble, or reverse engineer the Products or assist or encourage any third party to do so.

13.             Proprietary Information. Each party (“Receiving Party”) agrees (and will obligate its employees and other personnel) to treat as confidential and proprietary all specifications, drawings, blueprints, samples, models, tools, designs, processes, data, software and any other business or technical information, materials, or ideas in any form (e.g., written, electronic, visual, oral, or otherwise) that a reasonable recipient would understand to be confidential, proprietary, or competitively sensitive, supplied or disclosed to Receiving Party by or on behalf of the other party (“Disclosing Party”) in connection with the Quote, any PO, or any Product (“Proprietary Information”), except to the extent such information is or becomes part of the public domain through not act or omission of Buyer. For the avoidance of doubt, the design, features, specifications, and functionality of the Products are Seller’s Proprietary Information. Proprietary Information shall remain the property of Disclosing Party and Receiving Party shall use such Proprietary Information only in for the purposes contemplated by this Agreement and for no other purpose and Receiving Party shall not disclose Proprietary Information to any third parties, provided that Receiving Party may disclose Proprietary Information in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable law, such party provides the Disclosing Party with prompt notice of the same and cooperates with the Disclosing Party in connection with any actions taken by the Disclosing Party to protect such Proprietary Information, including without limitation the seeking of an appropriate protective order or other remedy. The parties expressly acknowledge and agree that any breach or threatened breach of this Section 13 by the Receiving Party may cause immediate and irreparable harm to the Disclosing Party that may not be adequately compensated by damages.  Each party therefore agrees that in the event of such breach or threatened breach of this Section 13 by the Receiving Party, and in addition to any remedies available at law, the Disclosing Party shall have the right to seek equitable and injunctive relief, without the need to post bond, with respect to such a breach or threatened breach.

14.             Termination. Seller may terminate any obligation to Buyer with respect to the sale of the Products set forth under this Agreement immediately by notice to Buyer if: (a) Buyer fails to make any payment on the due date; (b) Buyer fails to accept delivery of any shipment; (c) Buyer makes any assignment for the benefit of creditors; (d) A trustee or receiver of all or a substantial part of Buyer’s assets is appointed by any court; or (e) Buyer becomes insolvent or any bankruptcy or reorganization proceeding is instituted by or against Buyer. Seller may also terminate any such obligation to Buyer on thirty (30) days’ notice for any failure of Buyer to comply with any of its obligations contained in this Agreement, provided that such failure shall not have been corrected during such thirty (30) day period. All of Buyer’s obligations hereunder shall survive the cancellation, termination, or completion of the PO.

16.             Assignment. Buyer may not assign any of the rights or interests arising under this Agreement or for breach thereof without the prior written consent of Seller. Any attempted assignment shall be void and be grounds for immediate termination of any obligation to Buyer with respect to the sale of the Products set forth in this Agreement. Any or all of Seller’s rights or obligations hereunder may be assigned by Seller without notice and may be exercised by an assignee thereof.

17.             Governing Law. This Agreement shall be interpreted and governed according to the laws of the Commonwealth of Massachusetts, U.S.A. without regard to conflicts of law principles. Any of these terms or conditions of sale that is contrary to law shall not invalidate any other provision of this Agreement, and any provision required to be included in an agreement of this type by applicable law shall be deemed to be incorporated in this Agreement.

19.             Severability. If any provision or portion this Agreement is determined to be invalid or unenforceable under any applicable law, such provision or portion thereof shall not apply in such instance, but the remaining provisions shall remain in effect.

22.              Waiver. The failure of Seller to enforce any provision hereunder, or to exercise its right or privilege granted hereunder, shall not be construed as waiving any such provision, and the same shall continue in full force and effect.

23.             Entire Agreement. This Agreement as it is stated herein and the PO constitute the entire agreement between the parties and there are no other agreements or understandings, either written or oral, to conflict with, alter or enlarge this Agreement unless agreed to in writing by the parties.

24.             Indemnification. Buyer shall indemnify, defend, and hold harmless Seller from and against any claim, demand, suit, investigation, or proceeding, in each case made or brought against Seller arising from (a) Buyer’s breach or alleged breach of this Agreement; (b) Buyer’s negligence or willful misconduct; (c) Buyer’s violation of applicable law; or (d) any products liability, infringement, or other claim arising from any product incorporating or utilizing the Products.