|
Terms
and Conditions of Sale
Click Here for a downloadable
version of this document
1. Payment Terms.
For test equipment system, unless otherwise agreed by a signed written
agreement, Purchaser agrees to pay fifty (50) percent (%) of the total
order upon submission of a written or verbal purchase order and the
balance prior to or upon delivery by Surface Systems & Instruments, LLC
("SSI" or
"Seller") of the products or
services ordered by Purchaser. Unless otherwise expressly agreed in
writing, SSI’s time and materials incurred for shipping, delivery and
operator training (if any) will be separately invoiced. For computer or
mobile technology products, unless otherwise agreed by a signed written
agreement, Purchaser agrees to pay one-hundred (100) percent (%) of the
total order upon submission of a written or verbal purchase order prior
to SSI’s shipment of the products or services ordered by Purchaser.
Amounts reflected within any separate SSI Invoices shall be due and
payable on the Invoice Date shown on the invoice. If The invoice is not
paid by the 30th day of the month following the Invoice Date, Purchaser
will be subject to a service charge of one and one-half per cent (1.5 %)
for each month or part of each month following the Invoice Date during
which the invoice remains unpaid, except in those states where such
charge is prohibited by law, in which case, instead of a service charge,
interest will be assessed at one per cent (1 %) per month. All payments
made on any contract arising hereunder must be made in U.S. dollars and
be payable in The United States. If any contract involves payment for
goods for an entity organized and existing outside the United States,
all payments to be made on that contract shall have been approved by all
appropriate government foreign exchange control agencies, and Purchaser
shall immediately upon demand provide Seller with evidence of such
approval. In the event Seller receives a check in payment of an account
and such check is returned unpaid to Seller due to insufficient funds or
for any other reason, a two per cent (2%) service charge for each month
or part of a month following the Invoice Date during which the check
remains unpaid will continue to accrue until cash is finally received in
payment of the returned check. Each such returned check will be subject
to a separate one time service charge of $50.00. Additionally,
Purchaser may be liable by statute for damages equal to treble the
amount of the returned check up to a maximum of Five Hundred Dollars
($500.00).
2. Shipment, Risk of
Loss and Packing. Unless otherwise agreed to in writing by Seller,
all prices are FOB Seller's place of business. Purchaser shall pay all
transportation and insurance charges on time and materials basis.
Seller shall ship in accordance with Purchaser's shipping
instructions. In The absence of specific instructions or if
Purchaser's instructions are deemed unsuitable, Seller reserves the
right to ship by the most appropriate method. Unless otherwise agreed
to in writing by the Seller, title to the goods and risk of loss shall
pass to the Purchaser at the FOB point and all products shall be packed,
if appropriate, for shipping and storage in accordance with standard
commercial practices. All packing will conform to requirements of
carrier's tariffs. All claims for defects, shortages, or delays in
delivery shall be deemed waived unless presented in writing within 10
days from the date of receipt of the goods. If delivery of the goods is
to be in installments, any delay or default with respect to any
installment shall not affect Purchaser's obligation to accept and pay
for all remaining installments. Seller shall have no liability for
delay in delivery caused by circumstances beyond Seller's control, such
as, but not limited to, strikes, lock-outs, fires, delays of carriers,
inability to obtain materials or shipping space, government
interference, acts of God, acts of war, civil disturbance or terrorism,
inclement weather, etc.
3. Taxes. Purchaser
shall pay any applicable sales, use, excise, transaction privilege,
retailers occupational or any similar tax on the purchase of goods
purchased hereunder. Liability for any sales, use, excise, transaction
privilege, retailers occupational or any similar tax levied in
connection with sales arising hereunder or any penalty or interest
charge due on these taxes will be the sole responsibility of and be
payable by Purchaser even if not collected originally by Seller. In the
event Seller pays such amounts, Purchaser will immediately reimburse
Seller for such amounts. Any withholding, value added or similar tax of
any foreign government levied in connection with any sale arising
hereunder and payable before payment can be made to Seller in the United
States will be the responsibility of and will be paid by the
Purchaser. In the event Seller pays such tax, Purchaser shall
immediately reimburse Seller for such amount.
4. Software License.
Sales of SSI test equipment systems are subject to the terms and
conditions of SSI's standard software license agreement, pursuant to
which SSI grants Customer a single non-exclusive, non-transferable,
limited license to install, execute, display and otherwise use, the SSI
system calibration, data collection, and data analysis computer software
modules, as modified or configured by SSI for Customer pursuant to this
Agreement, together with any accompanying materials, documentation,
subsequent error corrections and updates that SSI may supply to you
under SSI's License Agreement (collectively the "Product") and only in
the Country of Purchaser’s domicile, solely to establish, modify and
provide access to the Customer's data files. The software provided
hereunder may be comprised of object code and/or source code as
determined by SSI in its sole discretion. All rights not expressly
granted to Customer herein are retained by SSI. All rights, title and
interest in and to the Product and any proprietary information contained
on the media, are owned by SSI and are protected by copyright, trademark
and trade secret law and other intellectual property laws and
international treaties. Customer acquires only the right to use the
Product during the term of, and subject to, SSI's License Agreement.
Customer agrees not to develop separate software applications of any
kind derived from the Product or any other proprietary information of
SSI. Any rights express or implied, in the Product and any proprietary
information contained in the media are reserved by SSI, except as
expressly specified in this Agreement. Customer must treat the Product
like any other copyrighted material except as otherwise provided under
this Agreement. Customer agrees not to remove, deface or obscure SSI's
copyright or trademark notices and/or legends or proprietary notices on
the Product, and/or contained in or on the media.
5. Compliance with Laws.
Purchaser hereby represents and warrants to Seller that it has complied
with all local, state, federal and foreign laws and regulations
applicable to this transaction.
6. Variation in Goods. Delivery of
goods pursuant hereto shall be subject to normal variations in SSI's
design modifications, weight, color, size, quantities, etc. and such
other variations as are standard in the trade.
7. Warranty. THIS
WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR PURPOSE OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESS OR
IMPLIED, WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Seller
warrants only that the Seller’s components sold pursuant to a contract
arising hereunder will be free of defects in materials and workmanship
for a period of one year from the date of delivery to the purchaser.
Third-party manufactured components of the goods or integrated system
sold under the parties’ agreement are covered by, and are the
responsibility of the manufacturer of such components, not the Seller.
SSI will replace free of charge, but not including transportation costs,
installation or any other service charges, components or assemblies that
are manufactured by SSI which SSI’s inspection and evaluation determines
to be defective, providing they are returned to SSI’s facility during
the effective period of the warranty. The warranty extends only to
those machines that have been properly used and maintained by the end
user. SSI’s warranty is automatically revoked if a part or assembly has
been misused or physically modified in any manner whatsoever by the
customer or an agency without SSI’s written permission.
8. Limitation of
Liability. EXCEPT AS OTHERWISE AGREED IN A SPECIFIC WRITING SIGNED
BY SELLER, SELLER SHALL NOT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL
DAMAGES, SUCH AS, BUT NOT LIMITED TO, DAMAGE FOR LOSS OF OTHER PROPERTY
OR EQUIPMENT, PROJECT DELAY OR IMPACT DAMAGES, LOSS OF PROFITS OR
REVENUE, COST OF CAPITAL OR CLAIMS OF PURCHASER'S CUSTOMERS. The
remedies of Purchaser set forth herein are exclusive, and the liability
of Seller with respect to the sale, delivery or resale of any goods
pursuant to any contract arising hereunder, whether in contract, in
tort, under any warranty, or otherwise, shall not exceed the difference
between the price of the goods as specified in that contract and the
value of the goods as delivered by Seller.
9. Import/Export License.
Unless otherwise arranged in writing, any import or export license or
permit required with respect to the goods sold pursuant to a contract
arising hereunder shall be Purchaser's responsibility.
10. No waiver. No
waiver of a breach of any provision of any contract arising hereunder
between Seller and Purchaser shall constitute a waiver of any other
breach of such provision.
11. Returned Goods. Due to the
custom nature of SSI's
products no goods may be returned without SSI's
express written consent. Upon such consent by SSI, any returned goods
will be subject to a service charge equal to the manufacturer's
restocking charge of fifteen (15) percent, plus Seller's estimate of the
actual damages which will be incurred by Seller on account of
Purchaser's return of the goods, including but not limited to Seller's
costs for providing such goods to Purchaser, receiving and restocking
such goods, and Seller's lost profit on the sale of such goods.
12. Cancellation and
Change Orders. If Purchaser cancels any sales order or any portion
of such Sales Order, Purchaser will be subject to a service charge for
such cancellation equal to Seller's estimate of the actual damages which
will be incurred by Seller on account of Purchaser's cancellation,
including but not limited to Seller's lost profit on the sale of such
goods. Special orders are non-cancelable and non-returnable. Special
orders are orders of goods or equipment, which are not normally stocked
at this location of Seller. If, after Purchaser submits a Sales order,
Purchaser issues a change order causing a delay in the delivery date,
Purchaser shall be subject to a service charge equal to Seller's
estimate of the actual damages which will be incurred by Seller on
account of Purchaser's change order including, but not limited to,
Seller's cost of providing and restocking such goods, if appropriate.
In addition, any such change by Purchaser establishing an alternative
delivery date greater than thirty (30) days from Purchaser's original
delivery date will constitute a new order for purposes of determining
the appropriate list price.
13. Provisional Sales/
Purchase Orders. Seller's acceptance of a Provisional
Sales/Purchase Order from Purchaser shall not operate to protect the
prices stated herein. All prices are subject to change without notice
unless otherwise stated herein. If the validity period stated herein
has expired, all prices shall become fixed at the price in effect at the
time of shipment upon Seller's receipt of an execute order or a written
release.
14. Disputed Invoices.
In the event Purchaser disputes an invoice, Purchaser must notify Seller
within 10 days after receipt of the invoice. Payment of the disputed
amount, as well as any finance charges thereon, shall be suspended until
resolution of the dispute. If it is established that the disputed
amount is due and owing Seller, the full amount shall be immediately due
and payable with service charges of two per cent (2%) per month or any
part of a month accruing thereon from the original date the disputed
amount became due. Payment of any undisputed amount must be timely
made. If the disputed amount exceeds fifty per cent (50%) of the total
amount invoiced to Purchaser in the immediately preceding six (6) month
period or $10,000, whichever is less, Purchaser agrees to deposit the
disputed amount in an interest bearing escrow account with Citibank FSB
at its Montgomery Street office in San Francisco, California until
resolution of the dispute.
15. Suspension of
Seller's Duty to Perform. If Purchaser fails to obtain any
necessary import license or permit or fails to make timely payment of
any invoice, Seller may, in its sole discretion and without waiving any
other rights or remedies which Seller may have, suspend delivery on any
unfilled Purchase Orders from Purchaser and unilaterally cancel any
obligation of Seller to later perform any unperformed obligations under
any contract arising hereunder. PURCHASER HEREBY EXPRESSLY WAIVES ANY
RIGHT OR CAUSE OF ACTION AGAINST SELLER IN CONTRACT, IN TORT OR
OTHERWISE FOR ANY SPECIAL, DIRECT OR INDIRECT, OR CONSEQUENTIAL DAMAGES
INCURRED AS A RESULT OF SELLER'S CANCELLATION OF ITS FURTHER OBLIGATIONS
UNDER THE CONTRACT AND REFUSAL TO DELIVER UNDER THIS PROVISION. SUCH
CANCELLATION OF SELLER'S OBLIGATIONS UNDER THE CONTRACT SHALL NOT BE
CONSIDERED A BREACH OF THE CONTRACT BY SELLER AS THE TIMELY PAYMENT OF
ALL INVOICES SHALL BE CONSIDERED A NECESSARY CONDITION PRECEDENT TO THE
SELLER'S DUTY TO PERFORM. Failure by the Seller to exercise its rights
under this provision shall not constitute waiver of its rights to do so
in the future. Cancellation of Seller's duty to perform under this
provision shall not negate Purchaser's obligations to perform its duties
under the contract.
16. Controlling Terms
and Conditions. These terms and conditions of sale of SSI and any
attachments hereto take precedence over Purchaser's additional or
different terms and conditions, to which notice of objection is hereby
given. Acceptance by Purchaser is limited to these terms and
conditions. Neither Seller's commencement of performance nor delivery
shall be deemed or construed as acceptance of Purchaser's additional or
different terms and conditions. These terms and conditions are an
integral part of the contract between Seller and Purchaser. Purchaser's
acceptance of Seller's products represents acceptance of these terms
and conditions of sale together with such additional terms as may be
set forth herein and any attachments hereto, all of which together
constitute the entire understanding between the parties and supersede
any previous communications, representations, or agreements by either
party whether verbal or written. No change or modification of any of
the terms or conditions herein shall be valid or binding on either party
unless in writing and signed by an authorized representative of each
party.
17. Liquidated Damages.
Purchaser agrees that in the event it fails to pay any invoice as agreed
for goods purchased pursuant hereto, a late payment charge shall be
assessed to cover Seller's additional expenses in collection and its
loss of the use of the money due. As it is extremely difficult to
ascertain the actual damages resulting to Seller, Purchaser agrees that
a late payment charge of two per cent (2%) will be charged and
compounded monthly on all outstanding overdue balances. The parties do
not intend that any action taken in connection with any sale of goods
arising hereunder shall constitute a loan or forbearance, nor that any
amount paid or agreed to be paid pursuant to such sale exceed the
maximum permissible under any applicable law. The late charge provided
for is a reasonable attempt to estimate the actual damages which will be
incurred by Seller if Purchaser fails to pay amounts when due. If,
under any circumstances, any charge arising out of Seller's sale of
goods to Purchaser is deemed by a court of competent jurisdiction to be
interest exceeding the highest amount permitted by law, such amount as
is received by Seller and would otherwise be excessive interest, will be
applied to the reduction of any amount owed by Purchaser or, if
Purchaser does not owe any principal to Seller, such amount will be
promptly refunded to Purchaser.
18. Governing Law and Resolution of
Disputes. The rights and obligation of the Purchaser and Seller
hereunder shall be governed by the laws of the State of California in
the event of any dispute or litigation with respect to the goods subject
thereto. Any dispute between the parties regarding the negotiation,
performance or enforcement of this Agreement shall be referred to the
American Arbitration Association for mediation and, if necessary,
arbitration pursuant to California law and the Association's rules for
the resolution of employment disputes. The arbitrator shall have the
ability to give any relief authorized by the laws applicable to the
claims made. Any resulting arbitrator's award shall be in writing and
contain findings of fact and conclusions of law. The award shall be
final, except that should the amount in dispute exceed $500,000.00, the
award shall be reviewable for substantial evidence and errors of law in
a court of competent jurisdiction on petition made, on thirty (30) days
notice, pursuant to Code of Civil Procedure Sec. 1285, et seq. In
addition, the award shall be reviewable in a United States District
Court for a District of competent jurisdiction for substantial evidence
and errors of federal law pursuant to Title 9 of the United States
Code. The arbitrator's award shall then become binding and enforceable
pursuant to applicable California and federal law. The prevailing party
shall be entitled to recover its reasonable costs thereof, including
attorneys' fees, in addition to any other relief to which it may be
entitled. Purchaser and Seller hereby expressly agree that the United
Nations convention on contracts for the International Sale of Goods, ("CISG")
shall not be a part of the law applicable to any contract arising
hereunder.
|
