1. ACCEPTANCE OF TERMS. All sales by SpectraDynamics, Inc. and its affiliates to Buyer of the Products are governed by these terms and conditions (“Terms of Sale”). If any offer or other document from Buyer differs, these Terms of Sale are a counteroffer and are not an acceptance of Buyer’s terms, which are rejected. THESE TERMS OF SALE ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND SPECTRADYNAMICS. Buyer’s failure to dissent in writing within ten (10) days of receipt, or Buyer’s acceptance of the Products, constitutes acceptance. No addition or modification is effective unless in writing signed by SpectraDynamics. SpectraDynamics’ acceptance of any order is expressly conditional on Buyer’s assent to these Terms of Sale; if this Section is held ineffective to make them controlling, Sections 5, 6 and 7 nonetheless apply, and Buyer acknowledges that SpectraDynamics would not supply the Products on any other basis. Order of precedence: (i) a written amendment signed by an authorized SpectraDynamics representative; (ii) these Terms of Sale; (iii) the SpectraDynamics quotation, which controls price, lead time, configuration and delivery term; and (iv) Buyer’s purchase order. Terms appearing on Buyer’s purchase order, portal, invoice-processing system or click-through interface are rejected.
2. QUOTATIONS, PRICES AND PAYMENT. Quotations are valid for sixty (60) days. Prices are EXW SpectraDynamics’ facility, Louisville, Colorado (Incoterms 2020), and exclusive of shipping, insurance, taxes, license fees, customs duties and other related charges, all of which Buyer shall pay. Payments are due in U.S. dollars or Euros, as stated on the Quotation. SpectraDynamics may require different payment terms, including Net 30, a letter of credit, or payment in advance, and invoices on the date of shipment. Payment is not contingent on installation, commissioning, acceptance by any end user or third party, or Buyer’s receipt of payment from its own customer. Payments not made when due may incur, at SpectraDynamics’ discretion, a late payment service charge of one percent (1%) per month or the maximum rate permitted by law, computed from the due date. Except as provided in Sections 5 and 7, all payments, including deposits, are non-refundable. Buyer shall not set off, deduct or withhold any amount without SpectraDynamics’ prior written consent. SpectraDynamics retains a purchase money security interest in the Products and their proceeds, including insurance proceeds, until paid in full, and Buyer shall execute any documents reasonably requested to perfect it, and may suspend performance on written notice and without liability if Buyer fails to pay when due.
3. DELIVERY, TITLE AND RISK OF LOSS. All Products are sold EXW SpectraDynamics’ facility, 1849 Cherry Street Unit 2, Louisville, Colorado 80027 (Incoterms 2020), unless otherwise agreed in writing by SpectraDynamics on the order acknowledgment. For export shipments, SpectraDynamics will complete the export documentation formalities required in the United States; customs clearance, duties, taxes and all other formalities in the country of destination are Buyer’s responsibility. Delivery occurs, and title and risk of loss pass to Buyer, when the Products are placed at Buyer’s disposal for collection, except that where SpectraDynamics arranges carriage on its own carrier or freight forwarder account, risk passes on loading. Loading is at Buyer’s cost and risk, whether or not SpectraDynamics assists. Title passes subject to the security interest in Section 2. Any carrier or freight forwarder is the agent of Buyer. SpectraDynamics has no obligation to insure the Products after delivery, and any claim for loss or damage at or after delivery shall be made by Buyer against the carrier, without relieving Buyer of payment. If Buyer fails to take delivery within ten (10) days after notice that the Products are ready, SpectraDynamics may invoice and store them at Buyer’s cost and risk.
4. SCHEDULE, DELAY AND FORCE MAJEURE. Shipping and delivery dates are estimates based on conditions known at the time of the Quotation and order acceptance. Lead times run from the later of SpectraDynamics’ written order acknowledgment and receipt of any required deposit, approved drawings or Buyer-furnished information. SpectraDynamics is not liable for, and the delivery schedule is extended by the duration of, any delay caused by an event beyond its reasonable control, including acts of God; fire, flood or severe weather; epidemic or quarantine; war, terrorism or civil unrest; labor disputes; acts of government, including delay in issuing any export license or authorization; cyber incident; failure of utilities or transportation; and shortage, allocation, discontinuance or unavailability of components, raw materials or manufacturing capacity, or the delay or default of a supplier or subcontractor. SpectraDynamics will notify Buyer within a reasonable time and provide a revised estimated ship date. If such an event continues more than one hundred twenty (120) days, either party may cancel the affected portion of the order on written notice, subject to Section 8. SpectraDynamics does not accept liquidated damages, late delivery penalties, reprocurement or cover costs, or any other charge assessed by reason of delay; Buyer’s sole and exclusive remedy for delay is to cancel the delayed portion on written notice, without cancellation charge.
5. INSPECTION AND WARRANTY. Products are deemed accepted unless written notice of defect or nonconformity is received by SpectraDynamics within ten (10) days of receipt at Buyer’s designated receiving address, and Buyer may reject only for failure to meet the Products’ specifications; this does not extend to loss or damage at or after delivery, for which Buyer’s sole recourse is against the carrier. SpectraDynamics warrants that, for twelve (12) months from date of shipment (the “Warranty Period”), 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. SpectraDynamics will only accept returns authorized by a SpectraDynamics representative and accompanied by a valid RMA number, with freight to SpectraDynamics prepaid by Buyer and at Buyer’s risk; where SpectraDynamics determines on examination, to its satisfaction, that the Product is defective and repairs or replaces it, SpectraDynamics bears the cost and risk of shipping it to Buyer’s designated address until delivery there. Products returned outside the Warranty Period, found not to be defective, or whose condition results from misuse, unauthorized modification or failure to install or maintain in accordance with published specifications, are returned at Buyer’s cost and risk. SpectraDynamics commits to no repair turnaround time and provides no loaner equipment unless separately agreed in writing and priced. Extended Warranty is available only at the time of the original order, in 12 month increments up to 48 months from 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 IN THIS SECTION 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.
6. 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 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 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. These limitations apply to and are enforceable against any claim relating to the Products asserted by Buyer’s customers, end users, or any third party claiming through Buyer, and Buyer shall not grant any such person rights against SpectraDynamics greater than Buyer’s own. SpectraDynamics supplies the Products in reliance on these limitations and on the warranty disclaimers, which form an essential basis of the bargain, and they apply even if any exclusive remedy fails of its essential purpose.
7. INTELLECTUAL PROPERTY. All Intellectual Property Rights worldwide — including patentable inventions (whether or not applied for), patents, patent rights, copyrights, works of authorship, moral rights, trademarks, service marks, trade names, trade dress, trade secrets, and all applications and registrations of the foregoing — conceived, developed, discovered or reduced to practice by SpectraDynamics in the performance of these Terms of Sale are the exclusive property of SpectraDynamics, which exclusively owns all right, title and interest in and to the Products and all inventions, works of authorship, layouts, know-how, ideas and information developed, conceived or reduced to practice by SpectraDynamics in the course of such performance. Nothing in these Terms of Sale implies any license or other right with respect to SpectraDynamics’ intellectual property. Buyer shall not, and shall not cause or permit a third party to, disassemble, analyze or test the Products for the purpose of extracting knowledge regarding their design, material content or fabrication methods. SpectraDynamics will defend Buyer against any third-party claim that a Product, as supplied and used in accordance with its published specifications, infringes a United States patent or copyright, and will pay damages finally awarded, provided Buyer promptly notifies SpectraDynamics in writing, grants SpectraDynamics sole control of the defense and settlement, and provides reasonable assistance; SpectraDynamics may, at its option, procure the right to continue use, replace or modify the Product, or refund the amount paid. This does not apply to claims arising from specifications, designs or materials furnished by Buyer, modification by any party other than SpectraDynamics, combination with goods not supplied by SpectraDynamics, or use outside the published specifications. This Section states SpectraDynamics’ entire liability and Buyer’s exclusive remedy for intellectual property infringement, is subject to Section 6, and SpectraDynamics’ aggregate obligation under it, including defense costs, shall not exceed the amount Buyer paid for the affected Products.
8. CANCELLATION AND PRODUCT CHANGES. Orders for custom, built-to-order or configured Products are non-cancellable once accepted by SpectraDynamics. Orders for standard manufactured products may be canceled only upon SpectraDynamics’ written approval and are subject to cancellation charges, as a percentage of the price of the canceled Products, of twenty-five percent (25%) before components or materials have been committed, forty percent (40%) after they have been committed but before manufacturing has commenced, sixty percent (60%) after manufacturing has commenced but before test, and one hundred percent (100%) once test has commenced or the Products are complete; such charges are in addition to any restocking fee and to compensation for resulting loss or damage, including labor, materials, non-recurring engineering and overhead. Buyer-initiated delays of shipment exceeding one hundred eighty (180) days from the original delivery date are deemed a cancellation under this Section. SpectraDynamics may modify the design, components or materials of the Products, and may substitute functionally equivalent components, without notice to or consent from Buyer, provided the Products continue to conform to SpectraDynamics’ published specifications, and has no obligation to make any such change to Products previously delivered. Where a component is discontinued, on allocation or otherwise unavailable and the only available change would depart from the published specifications, SpectraDynamics will seek Buyer’s approval, and Buyer shall respond within ten (10) business days, failing which the delivery schedule is extended by the period of Buyer’s delay. SpectraDynamics may terminate any order, or delay shipment, by reason of Buyer’s bankruptcy or insolvency, breach of these Terms of Sale, unauthorized assignment, or the pendency of any proceedings against Buyer under any statute for the relief of debtors.
9. CERTIFICATIONS AND INSTALLATION. SpectraDynamics may, on request, provide its own safety, electrical, electromagnetic compatibility and other regulatory test data and declarations of conformity, but does not provide country-specific or jurisdiction-specific certification or listing by a third-party accredited body. Buyer is solely responsible for determining the suitability of the Products for its application, for obtaining any approval, permit or certification required in the jurisdiction of use, and for installation, integration and operation in compliance with applicable law. Installation, commissioning, training and on-site services are not included unless expressly quoted.
10. INSURANCE. SpectraDynamics maintains commercial general liability insurance, including products liability and completed operations coverage, in commercially reasonable amounts, and will provide evidence of it on reasonable request. SpectraDynamics does not extend coverage under its policies to its customers and will not name Buyer or any other person as an additional insured, additional named insured, or loss payee, and nothing herein creates any right of Buyer against SpectraDynamics’ insurers.
11. AUDIT AND SITE ACCESS. SpectraDynamics will provide records and access reasonably necessary to demonstrate conformity of the Products to their published specifications. Any audit, inspection or site visit requested by Buyer requires at least thirty (30) days’ prior written notice, shall occur during normal business hours, is limited to one occasion in any twelve (12) month period, excludes areas and records containing proprietary design, process or third-party confidential information, and is subject to SpectraDynamics’ site safety, security and confidentiality requirements. SpectraDynamics does not grant unannounced access, resident inspection, or access to its suppliers’ facilities.
12. GOVERNMENT AND CUSTOMER-SPECIFIC REQUIREMENTS. Government contract clauses, including FAR and DFARS provisions, quality system requirements, supplier codes of conduct, flowdown schedules, and other customer-specific requirements apply to an order only if expressly identified in the SpectraDynamics Quotation and accepted in writing by an authorized SpectraDynamics representative. Documents incorporated by reference that have not been furnished to SpectraDynamics in writing before order acceptance do not apply, and no such document may be changed unilaterally after acceptance. SpectraDynamics maintains its own quality management system; Buyer-specific quality, inspection, marking, packaging, reporting or record-retention requirements apply only if accepted in writing and separately priced.
13. EXPORT CONTROL. Buyer shall comply with all applicable U.S. export control laws and regulations, including the Arms Export Control Act, 22 U.S.C. 2751-2794, and 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., and the Export Administration Regulations (EAR), 15 C.F.R. 730-774, including any requirement to obtain an export license. For any export order, Buyer shall provide a properly completed End User Statement identifying the end user, end use and ultimate destination before shipment, and shall promptly notify SpectraDynamics of any change. Buyer shall transfer the Products only to authorized end users, and shall not sell, transfer, export or re-export the Products, or any related data or services, directly or indirectly, to any person or entity that is denied, debarred, suspended or otherwise restricted under U.S. law, or to any foreign person, without the authority of an export license, agreement, exemption or exception. SpectraDynamics will notify Buyer if any product, data or service it supplies is restricted by export laws or regulations, and may withhold shipment where required documentation has not been provided or where it reasonably believes a transaction would violate applicable export laws. Buyer shall defend, indemnify and hold SpectraDynamics harmless against any fines, penalties, claims, losses, damages, costs (including legal costs) and liabilities arising from Buyer’s breach of this Section.
14. GENERAL. These Terms of Sale, and any dispute arising from them, are governed by the laws of the State of Colorado without regard to its choice of law rules, with exclusive jurisdiction and venue in the state courts of Boulder County, Colorado, or, where exclusive federal jurisdiction applies, the United States District Court for the District of Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Buyer shall bring any action relating to a dispute hereunder within one (1) year of its accrual. All waivers must be in writing and signed by SpectraDynamics, and waiver of a breach is not a waiver of future compliance. If any provision is held invalid, the remaining provisions remain enforceable. Buyer may not assign these Terms of Sale or its rights hereunder without SpectraDynamics’ prior written consent, and any unauthorized assignment is void. Except as stated in Section 6, these Terms of Sale confer no rights on any person who is not a party. Sections 1, 2, 5, 6, 7, 8, 13 and 14 survive completion or termination of any order. These Terms of Sale constitute the entire agreement between Buyer and SpectraDynamics with respect to Buyer’s purchase of the Products, supersede all prior agreements and understandings, and may not be changed, amended or superseded by conflicting terms submitted by Buyer except by a written instrument signed by an authorized SpectraDynamics representative.