INTEGRATED SENSING SOLUTIONS, INC.
TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE. If this writing differs in any way from the terms and conditions of Buyers order or if this writing is construed as an acceptance or as a confirmation acting as an acceptance, then Seller's acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN BUYER'S WRITING. Further, this writing shall be deemed notice of objection to such terms and conditions of Buyer. If this writing is construed as the offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyers acceptance of the goods shall manifest Buyers assent to Sellers terms and conditions. No addition to or modification of these terms will be effective, unless set forth in writing and agreed to by Seller.
2. WARRANTIES AND REMEDIES
b. Exclusion and Conditions. Sellers obligations with respect to the express warranties and remedies contained herein are conditioned on the following: p) Buyers return of the non-conforming goods, if authorized by Seller: (ii) Buyer shall not assign its rights under these express warranties and any attempted assignment shall render such warranties, but not any disclaimers or limitations, void and the goods sold shall be sold AS IS; and (iii) all products shall be carefully inspected for damage by Buyer upon receipt, be properly calibrated for Buyers particular use, and be used, repaired, and maintained by Buyer in accordance with the instructions set forth in Seller's product literature. Repair and maintenance by non-qualified personnel may invalidate the warranty. As with any other sophisticated product, it is essential, and a condition of Sellers warranty, that all personnel using the product be fully acquainted with its use, capabilities and limitations as set forth in the applicable product literature.
a. Warranty. Seller warrants to Buyer that it holds and will pass marketable title to the goods sold hereunder. Seller warrants to Buyer that the items and components manufactured OR sold by Seller will be free from defects in material and workmanship (subject, however, to tolerances and variances permitted by the trade hereunder) for a period of twelve (12) months from the date of shipment. For items and components incorporated in the products and not manufactured by Seller, the only warranty extended is that of the manufacturer or supplier, if any. In the event that any of Integrated Sensing Solutions, Inc.’s articles are proved to Integrated Sensing Solutions, Inc.’s satisfaction to have been defective at time of sale by Integrated Sensing Solutions, Inc.’s, then Integrated Sensing Solutions, Inc.’s liability for breach of the warranties set forth above shall be strictly limited to replacement or repair of the goods. In no event shall Integrated Sensing Solutions, Inc. be obliged to pay for the cost of: (1) gaining access to the goods sold; (2) installing repaired, modified, or replaced goods; (3) lost product; (4) lost production; (5) lost profits; (6) special, indirect damages; (7) incidental damages; and/or (8) consequential damages.
3. DISCLAIMER OF IMPLIED WARRANTIES. Seller gives no warranties except those expressly contained herein. Seller disclaims all other warranties implied by law usage of the trade, course of dealing or course of performance including, but not limited to, the Implied warranties of MERCHANTABILITY and fitness for a particular purpose.
4. LIMITATIONS OF LIABILITY. The following limitations of Sellers liability are acknowledged by the parties to be fair and reasonable and shall apply to any act. or omission hereunder, and to any breach of this contract of which these terms and conditions form a part:a. Disclaimer of Damage. In no event shall Seller be liable for special, indirect, consequential or incidental damages whether arising under contract, warranty, tort, strict liability or any other theory of liability. Such damages include but are not limited to loss of profits, loss of use of goods, damage to property, and claims of third parties.
b. Suitability. Buyer acknowledges that it alone has determined the intended purpose and suitability of the goods sold hereunder. It is expressly agreed by the parties that any technical or other advice given by the Seller with respect to the use of the goods or services is given without charge and at Buyers risk; therefore Seller assumes no obligation or liability for the advice given or results obtained.
c. Notice and Time of Claims.
i. Buyer agrees to check and inspect all products against shipping papers and for damage or shortage upon receipt of goods at destination.
ii. Every claim for shortage, damage in transit, or other cause visible upon inspection shall be deemed waived by the Buyer, or the Buyers customer in the case of resales, unless delivered in writing to Seller by Buyer thirty (30) days from the tender of delivery of the goods to Buyer, provided, however, thatclaims for shortage must be made within seven (5) days of receipt.
iii. The parties expressly waive the statute of limitations and agree that any legal proceeding for any breach of this contract shall be waived unless filed within one (1) year after the accrual of the cause of action thereof.
5. FORCE MAJEURE. Seller shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond the Sellers control including but not limited to fires, floods, or other forces of the elements; strikes, or other labor disputes; accidents to machinery; acts of sabotage; riots; precedence or priorities granted at the request or for the benefit, directly or indirectly of the federal or any state government or any subdivision or agency thereof; delay in transportation or lack of transportation facilities; restrictions imposed by federal, state or other governmental legislation or rules or regulations thereof. If Seller, in its sole discretion, determines that Seller's performance hereunder would result in a loss to Sellers on this sale as computed under Seller's normal accounting procedures because of causes beyond Sellers control, then the Seller may terminate this agreement in whole or in part without liability for any delay in the delivery of, or failure to deliver, the goods sold hereunder.
6. TAXES AND OTHER CHARGES. The Buyer will pay, or reimburse Seller if it pays, any and all taxes or tariffs or any other similar charges imposed upon this contract, the goods covered hereby or the delivery or use or resale thereof.
7. FREIGHT CHARGES. If the sale hereunder is other than F.O.B. Seller's facility, this acknowledgement is based upon the freight charges now in effect. In the event of an increase or decrease in applicable freight charges before the goods are shipped, such charge in freight will be for the Buyers account.
8. PRICES AND DELIVERY. Prices quoted herein are F.O.B. shipping point. Deliveries specified are only our best estimate and are subject to change. This quotation is based upon freight charges now in effect. Buyer will be invoiced at the freight charge prevailing at the date of shipment. Prices are firm for orders meeting Sellers normal shipping schedules. If shipments are held or postponed for any reason other than Sellers fault, and a price increase becomes effective during the period of such hold or postponement, the increase will apply to all shipments that are held or postponed thirty (30) days or more from the effective date of the increase. Purchaser agrees that a) all pricing information provided in the purchase order and related documents are confidential and shall not be disclosed to third parties without prior written consent from Integrated Sensing Solutions, Inc.; b) all software provided with the products listed in this order/quotation is licensed to purchaser on a non-exclusive, perpetual basis wherein the royalty is included in the total price of this order/quotation; c) Purchaser shall not attempt to copy, reverse engineer or decompile any software provided by Integrated Sensing Solutions, Inc.; and d) all software provided by Integrated Sensing Solutions, Inc. is confidential and purchaser shall take reasonable precautions to maintain the confidentiality of such software. Purchaser agrees to inform all subsequent purchasers or users of the obligations under this agreement.
9. PAYMENTS. If in the judgment of Seller the financial condition of Buyer at any time prior to shipment does not justify the terms of payment specified, Seller may cancel the order, withhold shipment, and/or require full or partial payment in advance.
a. Standard orders are invoiced 100% at shipping. Non-standard orders will be subject to the billing schedule included on the face of the sales quote. Payment of all invoices rendered by Integrated Sensing Solutions, Inc. to the purchaser are to be paid within 30 days of invoice date unless otherwise agreed in writing with Integrated Sensing Solutions, Inc.’s acceptance of specific alternate terms. A finance charge of 5% will be assessed on unpaid or past due invoices that have aged beyond 45 days from invoice date, and thereafter any remaining unpaid balance will be subject to an interest rate charge of 1.5% per month on any unpaid balance until that balance is paid in full.
b. Integrated Sensing Solutions, Inc. retains a purchase money security interest in all goods described in this order/quotation, to secure the payment by the purchaser of sums due therefore. Purchaser grants to Integrated Sensing Solutions, Inc. a power of attorney to file any UCC security interest filings that Integrated Sensing Solutions, Inc. deems necessary related to any goods sold hereunder.
c. In the event purchaser shall default in his obligations to provide payment for accepted orders of products and services provided by Integrated Sensing Solutions, Inc., purchaser shall be liable for Integrated Sensing Solutions, Inc.’s costs of collection, including reasonable attorney’s fees.
10. CANCELLATION OR ALTERATION. Buyer may not alter or cancel any order without Sellers written consent. For any order altered or cancelled with Sellers consent, Buyer must pay for all expenses and labor incurred up to the time of Seller's consent, plus a reasonable percentage for profit (typically a 20% restocking fee is charged for ISS manufactured products and 40% for non-ISS manufactured products). Any order delayed or deferred by Buyer will be subject to price escalation for increased costs of production, and any other expenses caused by the delay. Material on such orders will be stored at Buyers risk. Seller reserves the right to invoice Buyer and require payment before shipment of any delayed or deferred order.
11. TITLE AND RISK OF LOSS. Title and risk of loss shall pass to buyer at Pittsburgh, Pennsylvania, unless otherwise specified in the contract. If delivery is made by common carrier, risk of loss shall pass upon delivery to the carrier. Claims for loss or damage in transit must be made by Buyer to the carrier. Seller accepts no responsibility for loss or damage to product in transit.
12. PATENT OR TRADEMARK INFRINGEMENT. If the goods sold hereunder are to be prepared for manufacture according to Buyers specification, Buyer shall indemnify Seller against any claim or liability for patent, trademark, service mark or trade name infringement on account of preparation, manufacture and/or sale.
13. NON-WAIVER. If Government Contract Regulations require the addition, deletion, or modification of these terms and conditions upon prior notification to Seller and Sellers written acceptance thereof, such changes shall become a part of these terms and conditions. Seller shall not be bound by any Government Contract Regulations applicable to Buyers contracts with the U.S. Government unless Buyer has expressly acknowledged, on the face of this document, the applicability of such Regulations to the transaction between Buyer and Seller contemplated herein. Absent such acknowledgement, Seller is making the assumption in issuing this document that no such Regulations apply.
14. JURISDICTION. All such disputes shall be resolved in a court of competent jurisdiction in Allegheny County, Pennsylvania. Buyer hereby consents to the jurisdiction of the State and Federal Courts sitting in Allegheny County, appoints the Secretary of State of Pennsylvania in Harrisburg as its agent for service of process and agrees to any such proceeding upon notice thereof. Not withstanding the above, should either party contest the jurisdiction of such courts, the other party may institute its suit in any court of competent jurisdiction.
15. APPLICABLE LAW. All questions arising hereunder or in connection with the quotations or any order submitted in connection therewith and/or the performance of the parties hereunder shall be interpreted and resolved in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods.