LAST UPDATE: April 2019
Standard Terms and Conditions of Sale
All goods and services (“Goods”) sold or provided by Integrated Inspection Systems, Inc. and its subsidiaries and affiliates (collectively, “Seller”) to the purchaser or recipient of such Goods (“Buyer”) are expressly subject to the terms and conditions (the “Terms”) set forth below. No additions to or modifications of these Terms shall be binding upon Seller unless agreed to by the Seller in a signed document executed by an authorized representative of Seller. Buyer’s placing of an order with Seller for Goods, acceptance of shipment or performance of such Goods and/or payment for such Goods constitutes acceptance of these Terms.
The offer of sale or quotation to which these Terms are attached shall be deemed open for acceptance for a period of 30 days, except for any quotations on price, which are subject to the provision entitled “Pricing” below. Cancellations, modifications and waivers of any order for Goods pursuant to the offer of sale or quotation to which these Terms are attached (to which these Terms shall apply), or any of the underlying rights or obligations with respect thereto, shall not be effective without Seller’s prior written consent. These terms and conditions shall not be modified by any course of dealing or trade customs and usage.
Published and quoted prices are subject to change without notice. All orders are accepted with the understanding that Seller reserves the right to adjust prices to Seller’s prices prevailing at time of shipment. There shall be added to the purchase price the amount of all sales, excise and other taxes payable or accruing by reason of sales to Buyer.
Payment terms are net thirty (30) calendar days from date of invoice, unless otherwise agreed to and documented in a writing signed by an authorized representative of each of Seller and Buyer. Payment shall be made in United States currency. Interest will be charged on past-due accounts at a monthly rate of 1.5% or the highest rate permitted by applicable law, whichever is lower, on the unpaid balance until paid in full. Buyer shall pay Seller all costs incurred by Seller in collecting any past-due account from Buyer, including all court costs and attorneys’ fees.
DELIVERY TERMS; RISK OF LOSS
Product shipment terms are EXW (Ex-Works) for domestic shipments and FCA (Free Carrier, named place) (INCOTERMS 2010) for international shipments. Buyer shall pay all costs of shipment and insurance, unless otherwise agreed to and documented in a writing signed by an authorized representative of each of Seller and Buyer. Title shall pass to Buyer upon delivery to carrier at point-of-manufacture and thereafter all risk of loss and damage shall be upon Buyer. Seller’s delivery obligation shall be contingent upon Seller’s approval of Buyer’s credit at time of shipment.
Buyer is responsible for all costs associated with Buyer-initiated specification changes, including but not limited to, material and documentations costs. Buyer may, at any time prior to the delivery date of any Goods, make changes, by a written change order to Seller, in any one or more of the following: (a) drawings, designs or specifications where supplies to be furnished are to be specifically manufactured for Buyer in accordance therewith; (b) method of shipping or packing; (c) time and place of delivery; or (d) customer furnished material or equipment. All changes must be agreed to in writing by Seller prior to such changes becoming effective. If any changes cause an increase or decrease in the cost of, or work/delivery schedule for the performance of the work in order made pursuant to the offer of sale or quotation to which these Terms are attached, an equitable adjustment in the price or schedule, or both, shall be negotiated and such order modified accordingly prior to such changes becoming effective.
Buyer shall inspect all Goods delivered by Seller pursuant to these Terms. The acceptance of Goods shall not be subject to any destructive or non-destructive testing unless expressly authorized by Seller in its quotation or offer of sale. Any claim for nonconformity of Goods must be made by Buyer in writing within 20 days of receipt of such Goods, and all ascertainable defects and nonconformities shall be stated with particularity in such writing or be deemed waived. Under no circumstances shall Goods be returned to Seller without Seller’s written permission. A claim that Goods are nonconforming shall not entitle Buyer to deduct any sum from any invoice unless such claim has been allowed by Seller in writing. Invoices shall be paid in full in accordance with these Terms. Upon verification by Seller of a defect or nonconformance, Seller may repair, replace or, in Seller’s sole discretion, credit or pay to Buyer the amount so allowed with respect to such defect or nonconformity.
PATTERNS AND TOOLING
Seller shall have no responsibility for errors or variations in tooling, patterns, specifications, drawings or designs furnished to it by Buyer. Buyer agrees to pay for changes in tooling or patterns made necessary by Buyer’s change in specifications, drawings or designs, and agrees to assume all risks of damage thereto resulting from such changes. Subject to Buyer’s approval, pattern and tooling changes, repairs or replacements which become necessary on account of ordinary wear shall be made at Buyer’s expense. Seller shall not be liable for damages to tooling and pattern equipment except those damages due to Seller’s gross negligence. Pattern and tooling storage facilities are provide by Seller for active patterns and tooling only. Patterns and tooling not in use for a period of 24 months are subject to storage charges or return to Buyer at Buyer’s expense. Seller shall not be liable for the continued existence or availability of any pattern or tooling after such period of inactivity.
INDEMNIFICATION OF SELLER
Buyer shall indemnify, hold harmless and defend Seller against any claim, demand, loss, expense or liability, including attorneys’ fees, in any way related to the manufacture and sale of Goods manufactured in accordance with tooling, patterns, specifications, drawings or designs supplied by Buyer, including, but not limited to, (a) actual or alleged infringement of any patents, trademarks or other intellectual property and (b) product liability claims of any kind from any third party, unless solely as the result of Seller’s gross negligence.
LIMITATION ON WARRANTIES
Seller warrants that at the time of delivery Goods will conform to the applicable specifications, drawings or designs and, if applicable, will be free from defects in workmanship and material (except for material supplied by Buyer) for a period of twelve (12) months from the date of original shipment. Seller shall be liable under this warranty only if Buyer fully complies with the procedures relating to warranty adjustments set forth below. Returned Goods must be shipped, transportation prepaid, by the most economical method of shipment. Shipping costs will be credited on Goods found by Seller to be subject to Seller’s warranty. Excess transportation costs resulting from the use of other than the most economical carrier will not be reimbursed for Goods otherwise subject to Seller’s warranty. Seller will not be responsible for any packing, inspection, or labor costs and expenses or other incidental costs and expenses in connection with any Goods returned for adjustment. In all cases, Seller shall determine in its sole discretion whether: (a) such Goods conform to the applicable specifications, drawings or designs or are defective in workmanship or material; (b) have not been subject to accident, abuse or misuse; and (c) have been operated and maintained in accordance with the manufacturer’s recommendation and specifications. Seller’s inspection of nonconformities and defects shall be final. Adjustment will take the form, at Seller’s option, of a replacement or repair of the defective or nonconforming Goods. In the event that it is uneconomical to replace or repair warranted items, Seller may, at is sole discretion, remit the dollar equivalent or pro-rated amount based upon the original product sales price. Seller shall not be responsible for any re-inspection or rejection charges or any cost incurred by Buyer for the removal and/or reinstallation of the product. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND SELLER MAKES NO WARRANTY OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE RESULTS TO BE OBTAINED FROM THE GOODS OR THE RESULTS OF ANY RECOMMENDATION SELLER MAY MAKE, INCLUDING ANY WARRANTIES CONCERNING THE USE, APPLICATION, PERFORMANCE, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF RECOMMENDATIONS OR DELIVERABLES.
IF ANY MODIFICATIONS, ALERTATION, REPAIR OR REMOVAL OF ANY PART OR PRODUCT NOT AUTHORIZED IN WRITING BY SELLER RESULTS IN ANY INJURY TO A PERSON OR DAMAGE TO PROPERTY, THEN NO WARRANTY HEREIN SHALL APPLY, AND BUYER SHALL INDEMNIFY SELLER AGAINST ANY CLAIM, DEMAND, LOSS, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS’ FEES, IN ANY WAY RELATED TO SUCH INJURY OR DAMAGE
Seller shall not be held responsible for any failure of or delay in performance or delivery of all or any part of the Goods purchased under an order due to: (a) federal, state or municipal action, statute, ordinance or regulation; (b) strike, lockout or other labor shortage or dispute; (c) acts of God; (d) acts of government or terrorism; (e) fires, floods, epidemics, earthquakes or quarantine; (f) war, national emergency or other civil unrest, or (f) freight embargoes or other restraints or delays affecting carriers. The date of shipment or for delivery of Goods shall be extended for a period equal to the time lost because of the applicable delay. Should Seller’s shipment or provision of Goods become impossible, Seller’s obligation will be terminated and Seller will be compensated for Goods provided until that point.
LIABILITY AND DAMAGES:
Seller’s liability for any loss or damage arising out of, connected with or resulting from these Terms or any offer of sale, quotation or order to which these Terms apply, or from the performance or breach of any of the foregoing, or from the development, manufacture, sale, delivery, resale, repair or use of any Goods covered by or furnished under an order shall in no case exceed the order price allocable to the Goods, or part thereof, or service which gives rise to such claim. NOTWITHSTANDING ANYTHING IN THIS ORDER TO THE CONTRARY, SELLER WILL NOT BE LIABLE FOR ANY SPECIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES OR LOSS OF USE OF ANY PROPERTY OR CAPITAL OF BUYER OR ANY THIRD PARTY, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SELLER IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER. THESE EXCLUSIONS OF TYPES OF DAMAGES AND LIMITATIONS ON THE AMOUNT OF DAMAGES SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, WRONGFUL ACT, NEGLECT, STRICT LIABILITY OR ANY OTHER THEORY.
If an order provides for work to be performed by Seller on property owned or controlled by Buyer; (a) Seller agrees to insure its own employees performing the work with Worker’s Compensation and employee liability insurance; (b) Buyer agrees to indemnify and hold Seller harmless from any and all losses, liabilities damages, claims, demands, suits, actions, and proceedings arising as a result of Seller’s performance of the scope of work required, except to the extent that any such damage is due solely and directly to the gross negligence or willful misconduct of Seller; and (c) neither party shall be subject to incidental or consequential damages.
CHANGE OF CONTROL OR FINANCIAL CONDITION
Buyer shall notify Seller of any change of control, or change of more than 20% in ownership of Buyer as a corporate entity, whether directly or indirectly (each a “Change of Control”). Buyer shall further notify Seller of any known changes in Buyer’s financial condition that may adversely affect their ability to perform in accordance with the provisions of these Terms or any offer of sale, quotation or order to which these Terms apply. Buyer shall not assign or transfer (including by Change of Control) any of its rights or delegate any of its obligations under these Terms or any offer of sale or quotation or order to which these Terms apply without the prior written consent of Seller. Any purported assignment or delegation in violation of this provision is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms or any offer of sale, quotation or order to which these Terms apply.
Seller may terminate an order, in whole or in part, under any of the following circumstances: (a) if Buyer’s is late with any payment due and owning under such order; (b) if Buyer breaches any material provision of these Terms or any offer of sale, quotation or order to which these Terms apply; (c) if Buyer becomes insolvent or a petition under any bankruptcy act or similar statue is filed by or against Buyer and is not vacated within thirty (30) days after such filing. Such termination for default shall be effective immediately upon receipt by Buyer of a written notice of termination for default issued by Seller.
INTELLECTUAL PROPERTY RIGHTS
All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Seller, and all related intellectual property rights, shall remain Seller’s property.
Buyer agrees that it will not disclose any Seller proprietary data or information (including, but not limited to, drawings, machine specifications, software, production methods, collectively “Confidential Information”)provided to Buyer pursuant to these Terms or any offer of sale, quotation or order to which these Terms apply . All Confidential Information provided by Seller shall be held secret and confidential by Buyer and shall not be disclosed, in whole or in part, to any third party without the prior written consent of Seller. Such information shall not be duplicated, used or disclosed for any purpose except as required pursuant to these Terms or any offer of sale, quotation or order to which these Terms apply.
Governing Law: This Agreement shall be construed in accordance with and governed by the laws of the State of Oregon, without giving effect to any choice or conflict of law provisions thereof. If a lawsuit or other action is commenced by either Seller or Buyer against the other party concerning these Terms or any offer of sale, quotation or order to which these Terms apply, the prevailing party shall be awarded reasonable attorney’s fees.
Export Requirements: Commodities, technical data or software may be subject to the export control of either the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR) and may not be exported without the authorization of the Department of State or the Department of Commerce, respectively. Export includes the disclosure of technical data to foreign nationals whether located in the United States or abroad. Buyer agrees to comply with all applicable U.S. Government laws and regulations on exports, re-exports and transfers. Under certain circumstances, Seller will require that Buyer provide information on the ultimate destination of Goods sold to Buyer. This information includes, but is not limited to, information regarding the end use and the end user.
Export License: An order may require the acquisition of a license to be issued in compliance with U.S. export regulations. In the event such license is not granted, such order, or the applicable part thereof, will be cancelled by Seller and Buyer will be responsible for costs incurred with respect to such order at time of cancellation.
Debarred, Suspended, or Ineligible:
Notice: Seller will not employ, engage, or accept the services of an individual or company who is listed by a U.S.
Government agency as debarred, suspended, or otherwise ineligible for U.S. Government contracting.
Certification: Buyer hereby certifies that it is not, nor are any of its employees, listed by a U.S. Government agency as debarred, suspended, or otherwise ineligible for U.S. Government contracting.
ORDER OF PRECEDENCE
In the event of any inconsistency or conflict between or among the provisions of these Terms or any offer of sale, quotation or order to which these Terms apply, such inconsistency or conflict shall be resolved by the following descending order of preference: (a) any order; (b) these Terms; (c) any offer of sale or quotation; or (d) other incorporated or referenced documents.