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Terms of Sale | Terms of Purchase
Standard Terms and Conditions
of Sale
Customer and Harsh Environment Applied Technologies Incorporated ("H.E.A.T.")
agree that the purchase and sales of H.E.A.T. hardware and software products
("the Products") are made under these terms and conditions, and that H.E.A.T.
SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's
order and purchase of the Products shall constitute acceptance of these
terms and conditions
TITLE. Title to the Products shall pass at H.E.A.T.'s plant; however,
if Customer is the United States
or any political subdivision of the United
States, title shall pass at Customer's
plant. H.E.A.T. retains a security interest and right of possession in
the Products until Customer makes full payment.
TAXES. Product prices are exclusive of, and Customer shall pay,
applicable sales, use, service, value added or like taxes, unless Customer
has provided H.E.A.T. with an appropriate exemption certificate for the
delivery destination acceptable to the applicable taxing authorities.
PRICES AND PAYMENT. All quotations shall expire thirty (30) days
from date of issuance, unless otherwise set forth on the quotation or
agreed in writing. Customer shall make payment in full prior to or upon
delivery by cashier's check, credit card, or money order, unless H.E.A.T.
approves Customer for credit terms. If H.E.A.T. approves Customer's credit
application, payment shall be due no later than thirty (30) days from
the date of H.E.A.T.'s invoice. All sums not paid when due shall accrue
interest daily at the lesser of a monthly rate of 1.5% or the highest
rate permissible by law on the unpaid balance until paid in full. Payments
for orders accepted in the United States
shall be made in U.S. Dollars. In the event of any order for several units,
each unit(s) will be invoiced when shipped. Exceptions will be made for
government purchase orders to be negotiated with the contracting officer.
ORDERS. All orders are subject to acceptance by H.E.A.T. H.E.A.T.'s
booking of an order shall constitute its acceptance of an order.
DELIVERY. H.E.A.T. shall deliver the Products to a carrier at H.E.A.T.'s
plant and, if the Products are sold to a Customer outside the United
States, shall clear the Products for
export destined outside the United States.
Customer shall pay all freight charges, applicable import duties, and
other necessary fees and shall bear the risks of carrying out customs
formalities and clearance. Product prices are in US Dollars FOB Annapolis.
Orders are entered as close as possible to the Customer's requested shipment
date, if any. Shipment dates are scheduled after acceptance of orders
and receipt of necessary documents. Claims for shipment shortage shall
be deemed waived unless presented to H.E.A.T. in writing within five (5)
working days of delivery..
LIMITED WARRANTY. H.E.A.T. hardware Products are warranted against
defects in materials and workmanship for a limited period of time from
the date H.E.A.T. ships the Products to Customer ("Delivery Date") as
follows: Twelve (12) months unless otherwise
stated.
All software Products are licensed to Customer under
the terms of the appropriate Harsh Environment Applied Technologies Incorporated
license. For a period of thirty (30) days from the Delivery Date, H.E.A.T.
software Products (when properly installed on H.E.A.T. hardware Products)
(a) will perform substantially in accordance with the accompanying written
materials, and (b) the medium on which the software product is recorded
will be free from defects in materials and workmanship under normal use
and service. Any replacement of a licensed software product will be warranted
for the remainder of the original warranty period or thirty (30) days,
whichever is longer. Customer must obtain a Return Material Authorization
number from H.E.A.T. before returning any Products under warranty to H.E.A.T..
Customer shall pay expenses for shipment of repaired or replacement Products
to and from H.E.A.T.. After examining and testing a returned product,
if H.E.A.T. concludes that a returned product is not defective, Customer
will be notified, the product returned at Customer's expense, and a charge
made for examination and testing. This Limited Warranty is void if failure
of the Products has resulted from accident, abuse, misapplication, improper
calibration by Customer, Customer supplied third party software not intended
for use with the applicable H.E.A.T. software, utilization of an improper
hardware or software key or unauthorized maintenance or repair.
CUSTOMER REMEDIES. H.E.A.T.'s sole obligation (and Customer's sole
remedy) with respect to the foregoing Limited Warranty shall be to, at
its option, return the fees paid or repair/replace any defective Products,
provided that H.E.A.T. receives written notice of such defects during
the applicable warranty period. Customer may not bring an action to enforce
its remedies under the foregoing Limited Warranty more than one (1) year
after the accrual of such cause of action.
RETURN/CANCELLATION/CHANGE POLICY. All sales are final unless otherwise
agreed as a special agreement. Under such special agreement the customer
shall pay a twenty five percent (25%) restocking charge on any returned
items. No returns will be accepted after the thirty (30) day period has
expired. Where special equipment or services are involved, Customer shall
be responsible for all related work in progress; however, H.E.A.T. shall
take responsible steps to mitigate damages immediately upon receipt of
a written cancellation notice from Customer. A Return-Material Authorization
number must be obtained from H.E.A.T. for return of any Products. H.E.A.T.
may terminate any order if any representations made by Customer to H.E.A.T.
are false or misleading. Changes to orders shall not be binding upon nor
be put into effect by H.E.A.T. unless confirmed in writing by H.E.A.T.'s
appropriate representative.
NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE,
THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO
OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO
THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER
WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. H.E.A.T.
DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE
USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION
OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. H.E.A.T. EXPRESSLY
DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. The entire liability of H.E.A.T.
and its licensors, distributors, and suppliers (including its and their
directors, officers, employees, and agents) is set forth above. To the
maximum extent permitted by applicable law, in no event shall H.E.A.T.
and its licensors, distributors, and suppliers (including its and their
directors, officers, employees, and agents) be liable for any damages,
including, but not limited to, any special, direct, indirect, incidental,
exemplary, or consequential damages, expenses, lost profits, lost savings,
business interruption, lost business information, or any other damages
arising out of the use or inability to use the Products, even if H.E.A.T.
or its licensors, distributors, and suppliers has been advised of the
possibility of such damages. Customer acknowledges that the applicable
purchase price or license fee for the Products reflects this allocation
of risk. Because some states/jurisdictions do not allow the exclusion
or limitation of liability for consequential or incidental damages, the
above limitation may not apply. If the foregoing limitation of liability
is not enforceable because an H.E.A.T. product sold or licensed to Customer
is determined by a court of competent jurisdiction in a final, non-appealable
judgment to be defective and to have directly caused bodily injury, death,
or property damage, in no event shall H.E.A.T.'s liability for property
damage exceed the greater of $10,000 or fees paid for the specific product
that caused such damage.
WARNING: (1) H.E.A.T.
PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY
SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL
COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY
BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION,
INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS
CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS
IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING
SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE
USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE
COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING
OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE
AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART
OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE
HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE
A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING
THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON
ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID
DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY
PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED
TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED
AND DIFFERS FROM H.E.A.T.'S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION
DESIGNER MAY USE H.E.A.T. PRODUCTS IN COMBINATION WITH OTHER PRODUCTS
IN A MANNER NOT EVALUATED OR CONTEMPLATED BY H.E.A.T., THE USER OR APPLICATION
DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY
OF H.E.A.T. PRODUCTS WHENEVER H.E.A.T. PRODUCTS ARE INCORPORATED IN A
SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE
DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
FORCE MAJEURE. H.E.A.T.
shall be excused for any delay or failure to perform due to any cause
beyond its reasonable control, including but not limited to acts of governments,
natural catastrophes, acts of Customer, interruptions of transportation
or inability to obtain necessary labor or materials. H.E.A.T.'s estimated
shipping schedule shall be extended by a period of time equal to the time
lost because of any excusable delay. In the event H.E.A.T. is unable to
perform in whole or in part because of any excusable failure to perform,
H.E.A.T. may cancel orders without liability to Customer.
LIMITED INDEMNITY AGAINST INFRINGEMENT. H.E.A.T.
shall, at its own expense, defend any litigation resulting from sales
of the Products to the extent that such litigation alleges that the Products
or any part thereof infringes any United States patent, copyright, or
trademark, provided that such claim does not arise from the use of the
Products in combination with equipment or devices not made by H.E.A.T.
or from modification of the Products, and further provided that Customer
notifies H.E.A.T. immediately upon its obtaining notice of such impending
claim and cooperates fully with H.E.A.T. in preparing a defense. If Customer
provides to H.E.A.T. the authority, assistance, and information H.E.A.T.
needs to defend or settle such claim, H.E.A.T. shall pay any final award
of damages in such suit and any expense Customer incurs at H.E.A.T.'s
written request, but H.E.A.T. shall not be liable for a settlement made
without its prior written consent. If the Products are held to be infringing
and the use thereof is enjoined, H.E.A.T. shall, at its option, either
(i) procure for the Customer the right to use the Products, (ii) replace
the Products with others which do not constitute infringement, or (iii)
remove the infringing Products and refund the payment(s) made therefor
by Customer. The foregoing states the Customer's sole remedy for, and
H.E.A.T.'s entire liability and responsibility for, infringement of any
patent, trademark, or copyright relating to the Products provided hereunder.
THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY
AGAINST INFRINGEMENT.
ACKNOWLEDGMENT/GOVERNING LAW. Customer acknowledges
reading these Terms and Conditions, under-stands them and agrees to be
bound by them. A waiver of any provision of this agreement shall not be
construed as a waiver or modification of any other term hereof. With respect
to all orders accepted by H.E.A.T. in the United States, disputes arising
in connection with these Terms and Conditions of Sale shall be governed
by the laws of the State of Maryland without regard to principles of conflicts
of laws. With respect to all orders accepted by H.E.A.T. outside the United
States, disputes arising in connection
with these Terms and Conditions of Sale shall be governed by the laws
of the country and locality in which H.E.A.T. accepts the order without
regard to principles of conflicts of laws.
EEO COMPLIANCE. As applicable, Customer shall comply with the following
Equal Employment Opportunity requirements: 41 CFR sec 60-1.4(a), Equal
Opportunity; 41 CFR sec 60-250.5, Equal Opportunity for Special Disabled
Veterans and Veterans of the Vietnam Era; and 41 CFR sec. 60-741.5, Equal
Opportunity for Workers with Disabilities. H.E.A.T. is an equal opportunity
employer and operates a strict non discrimination policy.
Standard Terms and Conditions
of Purchase
1. This order and the purchase agreement that is entered into shall
be governed exclusively the laws of the State of Maryland, the general
terms and conditions set out hereinafter and, where applicable, the special
conditions set out on the front of this document. These terms and conditions
shall override any conditions mentioned in the vendor's documents. Such
conditions may therefore not be invoked against the purchaser in connection
with the agreement that is entered into.
2. An order must be
signed and set out in writing on the purchaser's standard form to be valid.
The same conditions for validity apply to amended orders.
3. Orders shall only
be deemed to have been confirmed if the attached duplicate copy of this
order is returned, signed by the vendor. If this duplicate copy is not
returned within eight days, the purchaser may regard the order as automatically
null and void. If a delivery is made without the aforementioned order
confirmation having been provided, this shall in all cases imply the tacit
acceptance by the vendor of the purchase conditions set out by the purchaser.
4. The prices are not
susceptible to adjustment. They include all payable duties and costs of
customs clearance, packaging, insurance and transport as far as the place
of delivery. Any returning of packaging material shall be undertaken at
the vendor's expense.
5. Every delivery must
be accompanied by a delivery note, stating the nature of the goods and
the order form number. This information must also appear on the invoice.
The purchaser may refuse partial deliveries except where it has given
its prior consent to them. The receipt of goods shall be undertaken exclusively
at the purchaser's premises, and its equipment alone shall be used to
check the delivery.
6. Until the moment
of delivery or installation at the indicated place, the vendor shall retain
sole responsibility for the goods, and bear all risks in connection with
lost or damaged goods, irrespective of whether the transport costs are
borne by the purchaser.
The vendor declares that the delivered goods are ready for use, that they
correspond to all the specifications in the order and the delivered documentation
and to the requirements of normal usage and legal and regulatory standards
(with respect to safety, hygiene, bacteriological quality, etc.) and that
they meet the normal requirements of usability, reliability and product
life. The supplier takes full responsibility and indemnifies the purchaser
in this regard. Any deviation from these requirements shall be regarded
as a defect. In the event of a serious defect, the purchaser may regard
the purchase agreement as terminated, automatically and without notice,
or require the delivery to be replaced by identical goods, or accept the
delivery on condition that a price reduction is accorded. This choice
shall be made by the purchaser alone. If the defect is minor, the purchaser
shall request the goods' immediate replacement at the vendor's expense,
including the cost of any extension or reinstallation work. All replacements
shall fall within the scope of the original guarantee.
Moreover, in the event of a defect, the vendor shall compensate the buyer
and any third parties for any related losses, including loss of use and
loss of profits. The guarantees provided by the vendor shall only apply
insofar as they do not restrict the purchaser's rights.
7. Defects that the
purchaser may reasonably be expected to notice at time of delivery (during
checks which may, however, be confined to samples only) shall be reported
within one month. The purchaser's signing of the delivery note shall not
under any circumstances be deemed to imply acceptance of the condition
of the goods, even if the vendor includes a declaration to this effect
on its delivery note. Any merchandise that does not correspond to the
specifications in our order and is rejected during the process of receipt
into our dedicated warehouse shall be returned to the supplier at the
latter's expense or shall be held at its disposal in our warehouse for
15 days, starting from the day of our notification of rejection; once
this deadline is passed, the vendor shall be liable to pay warehouse storage
charges for the merchandise, which shall be stored at the supplier's risk.
Other defects that are noticed subsequently shall be reported at the time
of their discovery. From the moment of discovery, the purchaser shall
have a period of six months within which to issue a writ of summons against
the vendor if the latter fails to respond with a solution that leads to
an amicable settlement.
8. The delivery dates
must be observed punctually, and failure to comply with them shall automatically
and without notice result, as the purchaser chooses, in either a price
reduction of 5% per week of delay, without restriction, or the termination
of the purchase agreement and the payment by the vendor of compensation
for related losses. The purchaser shall likewise be entitled, provided
it gives written notification thereof, to order the items on the delivery
note from another supplier, at the supplier's expense, risk and peril.
9. Payment shall be
made thirty (30) days from the end of the month in which the invoice was
received insofar as the receipt of the goods preceded that of the invoice.
The date of payment shall be deemed to be the date on which the purchaser
instructed its financial institution to make the payment. In the event
of a delivery that does not correspond to the order, the payment deadline
shall be extended until such time as the order is executed in full. The
purchaser shall in all cases acquit its obligations by making payment
to the supplier; any factoring or other agreement that the supplier may
enter into with third parties shall not be opposable to the purchaser,
unless the purchaser agrees to this in writing.
10. The agreement, while
it has not yet been or has only partly been executed, shall likewise,
automatically, without notice, and with the right to claim compensation
reserved, be terminated if the vendor is declared bankrupt, requests a
composition with its creditors or the extension of payments, or proceeds
to liquidate its assets if these are confiscated. The purchaser shall
give notice of the termination of the agreement by registered letter.
In the event of circumstances outside the vendor's control making the
delivery of the goods on time impossible, the purchaser may regard the
agreement as terminated, and request the repayment of any sums already
paid.
11. If the order relates
to contracting work, the contractor should be registered. The contractor
should provide documentary proof of its status as a registered contractor
within three days of receipt of this order. During the execution of the
order, the contractor should submit proof of registration every week.
In the absence of such proof, the purchaser may automatically regard the
agreement as terminated at any time, and shall notify the contractor thereof
by simple notification. The contractor shall compensate the purchaser
for all losses, with a minimum of 30% of the agreed price.
12. During the execution
of the order, the purchaser shall have the right to conduct a check at
any time inside the installations of the vendor and its subcontractors.
For all orders of printed matter or printed items, a print test must be
presented for approval.
13. Any dispute with
regard to the execution, validity or interpretation of the purchase agreement
shall fall under the exclusive jurisdiction of the State of Maryland
Terms of Sale | Terms of Purchase
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