1. Agreement.  The Terms and Conditions set forth herein, SSI’s Quote, and SSI’s Order Form (if used), constitute an Agreement between Surface Systems & Instruments, Inc. (“SSI”) and you the Customer (“Customer”) who purchases or rents a product from SSI, or hires SSI to perform a service.  Please read these Terms and Conditions  

2. Payment Terms.  Unless otherwise agreed in writing, a Customer purchasing a product from SSI agrees to pay a deposit of fifty percent (50%) of the total order with Customer’s purchase order and the balance prior to or upon delivery by SSI.  Customers purchasing a product or hiring a service from SSI agree that the payment for SSI Invoices shall be due and payable on the Invoice Date shown on the invoice, unless other terms are stated on the invoice.  If an SSI invoice is not paid by the 30th day of the month following the Invoice Date, Customer 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.  In states where such interest charge is prohibited by law, 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 the Customer purchasing a product from SSI is organized and existing outside the United States, all payments shall be made by electronic funds transfer (EFT) unless otherwise agreed by SSI in writing.  In the event Customer provides a check to SSI and such check is returned unpaid 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, plus the amount of fees charged on the returned check by SSI’s bank.  Additionally, Customer may be liable by statute for additional damages for submitting a check drawn an account with insufficient funds.   

3. Shipment, Risk of Loss and Packing.  Unless otherwise agreed to in writing by SSI, all product prices are FOB SSI's place of business.  SSI shall ship in accordance with Customer's shipping instructions.  In the absence of specific instructions or if Customer's instructions are deemed unsuitable, SSI will ship by the most appropriate method, in SSI’s sole discretion.  Customer shall reimburse SSI for all transportation and insurance charges based on SSI’s invoiced amounts for the time and materials incurred.  Unless otherwise agreed to in writing by the SSI, title to the goods and risk of loss shall pass to the Customer at the FOB point.  For devices or equipment rented by a Customer from SSI, unless otherwise agreed in writing by SSI, the risk of loss shall pass to the Customer at the time that the device or equipment is turned over to the Customer (or at the time the device or equipment is turned over to a shipping company or transporter hired by either party to deliver the device or equipment to the Customer).  SSI will use reasonable efforts to pack all items for shipping and storage in accordance with standard commercial practices.  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 Customer's obligation to accept and pay for all remaining installments.  SSI shall have no liability for delay in delivery caused by circumstances beyond SSI'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.

4. Taxes.  The Customer 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 Customer even if not collected originally by SSI.  In the event SSI pays such amounts, Customer will immediately reimburse SSI 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 SSI in the United States will be the responsibility of and will be paid by the Customer.   In the event SSI pays such tax, Customer shall immediately reimburse SSI for such amount.  

5. Software License.  SSI grants Customer a single non-exclusive, non-transferable, limited license to install, execute, display and otherwise use SSI developed application software for device calibration, data collection, data analysis, data conversion or translation, or reporting (collectively the "SSI Software Products”) for Customer’s sole use to collect, modify or provide access to the Customer's data files in the ordinary course of Customer’s business.  Any complimentary license supplied by SSI (e.g. to transportation agency or academic users) shall be subject to the restrictions of these Terms & Conditions.  This limited license includes SSI software as originally configured or modified by SSI for Customer pursuant to this Agreement, together with any accompanying materials, documentation, subsequent error corrections and updates that SSI may supply to Customer.  The software provided hereunder may be comprised of object code and/or source code as determined by SSI in its sole discretion.  All rights, title and interest in and to SSI Software Products and any proprietary information contained on the software installation media, are owned by SSI and are protected by copyright, trademark and trade secret law and other intellectual property laws and international treaties.  A Customer who purchases a device from SSI acquires only the right to use the SSI Software Products during the term of ownership of an SSI device.  If Customer is granted a license to use SSI software based on rental of a device from SSI, or the hiring or SSI to perform services, such license shall remain effective for the period that Customer reasonably need to use the SSI Software Products for the duration of the rental or service project.  Customer agrees not to develop separate software applications of any kind derived from the SSI Software Products or any other proprietary information of SSI.  Specifically Customer shall not, directly or indirectly undertake to alter, decompile or reverse engineer the SSI Software Products in any manner or under any circumstances.  Nor shall Customer directly or indirectly assist any third party in undertaking to alter, decompile or reverse engineer the SSI Software Products in any manner or under any circumstances.  Any and all rights, express or implied, in the SSI Software Products and any proprietary information contained within the material accompanying the SSI Software Products are reserved by SSI, except as expressly specified within these Terms and Conditions.  Customer must treat the SSI Software Products like any other copyrighted material, except as otherwise provided under these Terms and Conditions. Customer receives no other rights or license, whether by implication, estoppel or otherwise.  All rights not expressly granted to Customer herein are retained by SSI.   

6. Compliance with Laws. The Customer hereby represents and warrants to SSI that it has complied with all local, state, federal and foreign laws and regulations applicable to any transaction under which Customer purchases products or services from SSI.  

7. Variation in Goods.  Delivery of goods or services pursuant to these Terms and Conditions 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.  

8. 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.  UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF SSI EXCEED THE AMOUNTS PAID BY THE CUSTOMER TO SSI UNDER PURCHASE, DEVICE RENTAL, OR SERVICE TRANSACTION (AND RELATED INVOICES) PERFOMRED BY SSI PURSUANT TO THESE TERMS AND CONDITIONS.                  

  (a) For equipment or devices purchased by Customer, SSI warrants only that the SSI manufactured 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 Customer.  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 SSI.  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 devices 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.

  (b) For equipment rented by Customer from SSI, or services performed by SSI for Customer, SSI warrants only that information or data generated by SSI’s service, or the SSI device rented by the Customer conform to SSI’s specifications for the device or applicable transportation agency specifications specifically applicable to the device used, and for those purposes only.  SSI provides no warranty against equipment malfunctions or misuse of an SSI device.  SSI provides no warranty for use of data generated by an SSI device or SSI Software Products for use in applications beyond the scope of transportation agency or SSI specifications specifically applicable to the device at issue.   

9. LIMITATION OF LIABILITY.  EXCEPT AS OTHERWISE AGREED IN A SPECIFIC WRITING SIGNED BY SSI, SSI SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, DAMAGE FOR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, DELAY OR IMPACT DAMAGES, COST OF CAPITAL OR CLAIMS AGAINST THE CUSTOMER BY THIRD PARTIES.  The remedies of Customer set forth herein are exclusive, and the liability of SSI with respect to the sale, delivery or resale of any goods or services pursuant to any contract arising hereunder, whether in contract, in tort, under any warranty, or otherwise, shall not exceed the revenue received by SSI for the goods or services delivered and invoiced by SSI.  

10. 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 Customer's responsibility.  

11. No waiver.  No waiver of a breach of any provision of any contract arising hereunder between SSI and Customer shall constitute a waiver of any other breach of such provision.   

12. Returned Goods.  Due to the custom nature of SSI's products no goods may be returned without SSI's express written consent and a written Return Merchandise Authorization (RMA) issued by SSI.  Upon such consent and RMA issued by SSI, the goods may be evaluated and repaired by SSI and returned to the Customer.  If SSI, in its sole discretion, authorizes the Customer to permanently return the goods, then any returned goods will be subject to a service charge equal to the manufacturer's restocking charge, if any, plus SSI's estimate of the actual damages which will be incurred by SSI on account of Customer's return of the goods, including but not limited to SSI's costs for providing such goods to Customer, receiving and restocking such goods, and SSI's lost profit on the sale of such goods.  

13. Cancellation and Change Orders.   If Customer cancels any purchase order or any portion of such purchase order, Customer will be subject to a service charge for such cancellation equal to SSI's estimate of the actual damages which will be incurred by SSI on account of Customer's cancellation, including but not limited to SSI'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 by SSI.  If, after Customer submits a purchase order, Customer issues a change order causing a delay in the delivery date, Customer shall be subject to a service charge equal to SSI's estimate of the actual damages which will be incurred by SSI on account of Customer's change order including, but not limited to, SSI's cost of providing and restocking such goods, if appropriate.  In addition, any such change by Customer establishing an alternative delivery date greater than thirty (30) days from Customer's original delivery date will constitute a new order for purposes of determining the appropriate list price.  

14. Provisional Sales/ Purchase Orders.  SSI's acceptance of a Provisional Sales/Purchase Order from Customer 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 SSI's receipt of an execute order or a written release.  

15. Disputed Invoices.  In the event Customer disputes an SSI Invoice, Customer must notify SSI 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 SSI, 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 Customer in the immediately preceding six (6) month period or $10,000, whichever is less, Customer 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.  

16. Suspension of SSI's Duty to Perform.  If Customer fails to obtain any necessary import license or permit or fails to make timely payment of any invoice, SSI may, in its sole discretion and without waiving any other rights or remedies which SSI may have, suspend delivery on any unfilled Purchase Orders from Customer and unilaterally cancel any obligation of SSI to later perform any unperformed obligations under any contract arising hereunder.  CUSTOMER HEREBY EXPRESSLY WAIVES ANY RIGHT OR CAUSE OF ACTION AGAINST SSI IN CONTRACT, IN TORT OR OTHERWISE FOR ANY SPECIAL, DIRECT OR INDIRECT, OR CONSEQUENTIAL DAMAGES INCURRED AS A RESULT OF SSI'S CANCELLATION OF ITS FURTHER OBLIGATIONS UNDER THE CONTRACT AND REFUSAL TO DELIVER UNDER THIS PROVISION.  SUCH CANCELLATION OF SSI'S OBLIGATIONS UNDER THE CONTRACT SHALL NOT BE CONSIDERED A BREACH OF THE CONTRACT BY SSI AS THE TIMELY PAYMENT OF ALL INVOICES SHALL BE CONSIDERED A NECESSARY CONDITION PRECEDENT TO THE SSI'S DUTY TO PERFORM.  Failure by SSI to exercise its rights under this provision shall not constitute waiver of its rights to do so in the future. Cancellation of SSI's duty to perform under this provision shall not negate Customer's obligations to perform its duties under the contract.  

17. Controlling Terms and Conditions.  These Terms and Conditions of SSI and any attachments hereto take precedence over Customer's additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Customer is limited to these Terms and Conditions.  Neither SSI's commencement of performance nor delivery shall be deemed or construed as acceptance of Customer's additional or different terms and conditions.  These Terms and Conditions are an integral part of the contract between SSI and Customer.  Customer's acceptance of SSI's products or services represents acceptance of these Terms and Conditions of sale together with such additional terms as may be set forth herein and any SSI Quotes or SSI Invoices or 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.  

18. Liquidated Damages.  Customer 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 SSI'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 SSI, Customer 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 SSI if Customer fails to pay amounts when due.  If, under any circumstances, any charge arising out of SSI's sale of goods to Customer is deemed by a court of competent jurisdiction to be interest exceeding the highest amount permitted by law, such amount as is received by SSI and would otherwise be excessive interest, will be applied to the reduction of any amount owed by Customer or, if Customer does not owe any principal to SSI, such amount will be promptly refunded to Customer.  

19. Governing Law and Resolution of Disputes.  The rights and obligation of the Customer and SSI 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 these Terms and Conditions 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 commercial 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 California 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.  Customer and SSI 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.