1. 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.
2. QUOTATIONS AND PRICES. All Quotations are valid for ninety (90) days. Unless otherwise stated in writing by SpectraDynamics, all prices set forth on the Quotation shall be exclusive of shipping, insurance, taxes, license fees, customs duties and other charges related thereto, and Buyer shall pay all such charges related thereto.
3. 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 Net 30, without limitation, 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.
4. SHIPPING. 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. All Products shall be delivered F.O.B. destination. Unless otherwise contracted, shipping costs shall be prepaid by Buyer if requested by SpectraDynamics. Risk of loss and damage thereto shall be borne by SpectraDynamics until delivery to the F.O.B. destination point, and any loss or damage thereafter shall not relieve Buyer from any payment obligation, rather SpectraDynamics will be responsible to replace any lost or damaged item(s). Unless otherwise contracted, the carrier shall be deemed an agent of SpectraDynamics.
5. 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.
6. WARRANTY. SpectraDynamics hereby warrants to Buyer, that during the applicable Warranty Period (Standard 12 months from date of shipment) the Products will conform to SpectraDynamics’ published specifications and will be free of defects in materials or workmanship when used, installed and maintained in accordance with SpectraDynamics’ published specifications. SpectraDynamics’ sole liability and Buyer’s sole and exclusive remedy for breach of warranty shall be limited to, at SpectraDynamics’ option, either repairing or replacing the defective product or crediting Buyer for the amount Buyer has paid to SpectraDynamics for the applicable Product. SpectraDynamics’ liability shall apply only to Products which are returned to the factory, with shipping charges prepaid by Buyer, and which are, after examination, determined to SpectraDynamics’ satisfaction to be defective due to defects in materials or workmanship. SpectraDynamics will only accept returns authorized by a SpectraDynamics representative and with a valid RMA number. Any Extended Warranty option is only available at the time of order, original Product purchase. SpectraDynamics may extend the standard Warranty by 12 months periods up to 48 months from the shipping date for 2.5% of the Product price per year. For Products that are discontinued, SpectraDynamics’ liability shall terminate 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.
7. LIMITATION OF LIABILITY. To the extent not prohibited by applicable law: (a) SpectraDynamics, Inc. 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.
8. 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 is 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 product for the purpose of extracting knowledge regarding the design, material content, or fabrication methods.
9. CHANGES, DELAYS OF SHIPMENT, OR CANCELLATION.
a) All orders of SpectraDynamics standard manufactured products, EXCLUDING custom orders, may be cancelled 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.
10. 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.
11. 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 Regulation (ITAR), 22 C. F. R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, 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.
12. 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 State of Colorado). Buyer shall bring action relating to any dispute Buyer may have hereunder within one (1) year of the accrual of such dispute.
13. 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 supersedes 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.