Terms and Conditions | Spectra Dynamics

ACCEPTANCE OF TERMS. All sales by SpectraDynamics, Inc. and its affiliates to Buyer of the Products will be governed by these terms and conditions (“Terms of Sale”). If the terms and conditions of any offer from Buyer or any other Buyer document differ from these Terms of Sale, these Terms of Sale shall be construed as a counteroffer and will not be effective as an acceptance of Buyer’s terms and conditions, which are hereby rejected. THESE TERMS OF SALE SHALL BE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF AGREEMENT BETWEEN BUYER AND SPECTRADYNAMICS. Buyer’s failure to dissent to these Terms of Sale in writing within ten (10) days of receipt thereof or Buyer’s acceptance of the Products shall constitute acceptance of these Terms of Sale. No addition to or modification of these Terms of Sale will be effective unless made in writing signed by SpectraDynamics.
QUOTATIONS AND PRICES. All Quotations are valid for sixty (60) days. Unless otherwise stated in writing by SpectraDynamics, all prices set forth on the Quotation are FCA SpectraDynamics’ facility, Louisville, Colorado (Incoterms 2020), and are exclusive of shipping, insurance, taxes, license fees, customs duties and other charges related thereto, and Buyer shall pay all such charges related thereto.
PAYMENT. All payments are due and payable in U.S. dollars. SpectraDynamics reserves the right to require different payment terms for different Customers and/or Countries, including, without limitation, Net 30, a letter of credit, or payment in advance. Payments not made by the due date may incur, at the sole discretion of SpectraDynamics, a late payment service charge of one percent (1%) per month or the maximum rate permitted by law, computed from the date payment was due. All payments, including deposits, shall be non-refundable. SpectraDynamics shall retain a purchase money security interest and/or other security interest in the Products, and in any proceeds thereof, including insurance proceeds, until Buyer has made all payments required hereunder. Buyer agrees to take any acts (including executing and delivering all documents) reasonably requested by SpectraDynamics to protect, maintain, and perfect SpectraDynamics’ security interest.
SHIPPING AND DELIVERY. Shipping and delivery dates are estimates only, and in no event shall SpectraDynamics be liable for any delay in delivery or assume any liability in connection with shipment. Unless otherwise expressly agreed in writing by SpectraDynamics on the applicable order acknowledgment, all Products are sold and delivered FCA SpectraDynamics’ facility, 1849 Cherry Street Unit 2, Louisville, Colorado 80027 (Incoterms 2020). Delivery occurs, and title and risk of loss and damage pass to Buyer, when SpectraDynamics has loaded the Products onto the collecting vehicle nominated by Buyer at that facility. Title passes subject to the security interest retained by SpectraDynamics under Section 3. SpectraDynamics shall carry out any export clearance formalities required in the United States, and Buyer shall provide all information and documentation reasonably required for that purpose. Buyer is responsible for nominating the carrier and for arranging and paying all carriage, insurance, import clearance, duties, taxes and other charges relating to the Products after delivery. License fees and similar charges are for Buyer’s account as provided in Section 2.
Any carrier, freight forwarder or other party transporting the Products is the agent of Buyer and not of SpectraDynamics, whether or not arranged by SpectraDynamics at Buyer’s request and for Buyer’s account. SpectraDynamics has no obligation to insure the Products after delivery. Any claim for loss of or damage to Products occurring after delivery shall be made by Buyer against the carrier, and no such loss or damage shall relieve Buyer of any payment obligation.
If Buyer fails to nominate a carrier or to take delivery within ten (10) days after SpectraDynamics notifies Buyer that the Products are ready for collection, risk of loss shall pass to Buyer on the date of such notice, and SpectraDynamics may store the Products at Buyer’s sole cost and risk.
INSPECTION. All Products delivered hereunder shall be deemed accepted by Buyer, unless written notice of defect or nonconformity is received by SpectraDynamics within ten (10) days of receipt of Products at Buyer’s designated receiving address; provided that Buyer may only reject Products for failure to meet the Products’ specifications. Buyer’s right to reject under this Section applies only to failure to meet the Products’ specifications and does not extend to loss of or damage to Products occurring after delivery under Section 4, for which Buyer’s sole recourse is against the carrier.
WARRANTY. SpectraDynamics warrants to Buyer that, during the applicable Warranty Period (standard twelve (12) months from date of shipment), the Products will conform to SpectraDynamics’ published specifications and be free of defects in materials and workmanship when used, installed and maintained in accordance with those specifications. SpectraDynamics’ sole liability and Buyer’s sole and exclusive remedy for breach of warranty is, at SpectraDynamics’ option, repair or replacement of the Product or credit of the amount Buyer paid for it.
This warranty applies only to Products returned to the factory under a valid RMA number authorized by a SpectraDynamics representative, with freight prepaid by Buyer and at Buyer’s risk, and determined on examination, to SpectraDynamics’ satisfaction, to be defective in materials or workmanship. Where SpectraDynamics so determines and repairs or replaces the Product, SpectraDynamics bears the cost and risk of shipping it to Buyer’s designated address, and risk of loss and damage remains with SpectraDynamics until delivery at that address. In all other cases — including Products returned outside the applicable Warranty Period, Products found not to be defective, and Products whose condition results from misuse, unauthorized modification, or failure to install or maintain in accordance with SpectraDynamics’ published specifications — the Product is returned to Buyer at Buyer’s cost and risk in accordance with Section 4.
SpectraDynamics will only accept returns authorized by a SpectraDynamics representative and accompanied by a valid RMA number. Extended Warranty is available only at the time of the original order, in 12 month increments up to 48 months from the date of shipment, for additional cost. For discontinued Products, SpectraDynamics’ liability terminates at the end of the 12 month standard Warranty Period. Except for the warranty stated herein and to the extent permitted by applicable law, SpectraDynamics, Inc. SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
LIMITATION OF LIABILITY. To the extent not prohibited by applicable law: (a) SpectraDynamics, Inc.’s aggregate liability to Buyer for claims relating to the Products, whether for infringement, breach or in tort, including negligence, is limited to the amounts Buyer has paid to SpectraDynamics for the Products; and (b) SPECTRADYNAMICS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SALE, THE QUOTE, THE PRODUCTS OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, REPLACEMENT COSTS OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SPECTRADYNAMICS, INC. HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties acknowledge that if SpectraDynamics provides the Products to Buyer, it does so in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Liability for damages will be limited and excluded as set forth in this paragraph, even if any exclusive remedy provided for in these Terms of Sale fails of its essential purpose.
INTELLECTUAL PROPERTY.
A). Intellectual Property Rights. Any Intellectual Property Rights on a worldwide basis, including, without limitation, patentable inventions (whether or not applied for), patents, patent rights, copyrights, work of authorship, moral rights, trademarks, service marks, trade names, trade dress, trade secrets and all applications and registrations of all of the foregoing resulting from the performance of these Terms of Sale that are conceived, developed, discovered or reduced to practice by SpectraDynamics, shall be the exclusive property of SpectraDynamics. Specifically, SpectraDynamics shall exclusively own all rights, title and interest (including, without limitation, all Intellectual Property Rights throughout the world) in and to the Products and any and all inventions, works of authorship, layouts, know-how, ideas or information discovered, developed, made, conceived or reduced to practice, by SpectraDynamics, in the course of the performance of these Terms of Sale.
B). Reverse Engineering. Buyer agrees not to engage in, or cause a third party to engage in, the disassembly, analysis, or testing of the Products for the purpose of extracting knowledge regarding the design, material content, or fabrication methods.
CHANGES, DELAYS OF SHIPMENT, OR CANCELLATION.
A). All orders of SpectraDynamics standard manufactured products, EXCLUDING custom orders, may be canceled upon SpectraDynamics approval and may be subject to restocking fees plus compensation for any resulting loss or damage including, without limitation, the cost of labor, materials, and overhead expenses. Compensation fee should not be less than 40% of the purchase order and no more than 70%.
B). Customer initiated delays of shipments exceeding 180 days from the original delivery date will be deemed a cancellation and fall under this cancellation policy.
REMEDIES. SpectraDynamics shall have the right to terminate any order, or to delay the shipment thereof, by reason of Buyer’s bankruptcy or insolvency, breach of any terms herein, unauthorized assignment, or the pendency of any proceedings against Buyer under any statute for the relief of debtors.
EXPORT CONTROL. The Buyer agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; and the Export Control Reform Act of 2018, 50 U.S.C. 4801 et seq., including the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license if applicable. Without limiting the foregoing, the Buyer agrees that it will not transfer to foreign persons or entities any items, data, or services it receives from the Seller that constitutes any export of controlled items, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to the Buyer or the Buyer’s suppliers, without the authority of an export license, agreement, or applicable exemption or exception. The Seller agrees to notify the Buyer if any product, data, or service the Seller supplies to the Buyer is restricted by export laws or regulations. Buyer will defend, indemnify and hold Seller harmless for any damages or costs to Seller arising from Buyer’s failure to comply with these terms. Buyer agrees to indemnify Seller for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses and liabilities that may arise as a result of Buyer’s breach of this Section.
APPLICABLE LAW. This Agreement, and any disagreement arising thereof, will be governed by the laws of the State of Colorado without regard to that State’s choice of laws, with exclusive jurisdiction and venue in the Colorado state courts of Boulder County, Colorado (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Colorado). Buyer shall bring action relating to any dispute Buyer may have hereunder within one (1) year of the accrual of such dispute.
MISCELLANEOUS. Nothing in these Terms of Sale or the sale of the Products shall imply any license or other rights with respect to any intellectual property rights of SpectraDynamics or its suppliers, and SpectraDynamics reserves all such rights. All waivers of any right hereunder must be in writing and signed by SpectraDynamics. Waiver of a breach by the other party of any provision of these Terms of Sale shall not be deemed a waiver of future compliance therewith. If any provision of these Terms of Sale is held invalid by any U.S. law or regulation or by any U.S. court having valid jurisdiction, such invalidity will not affect the enforceability of other provisions. These Terms of Sale and Buyer’s rights hereunder may not be assigned by Buyer without the prior written consent of SpectraDynamics, Inc. and any unauthorized assignment by Buyer shall be void. These Terms of Sale constitute the entire agreement between Buyer and SpectraDynamics with respect to Buyer’s purchase of the Products and supersede all prior agreements and understandings with respect to such purchase and may not be changed or amended, or superseded by conflicting terms and conditions submitted by Buyer, except by a written instrument signed by an authorized SpectraDynamics representative.