PRODIGY SCIENTIFIC, INC. TERMS AND CONDITIONS OF SALE
DEFINITIONS: “Seller” means Prodigy Scientific, Inc. “Buyer” means the legal entity purchasing Goods from seller. “Goods” means the products offered by Seller and/or purchased by Buyer. “Offer” means any quote, proposal, or offer to sell Goods provided by Seller to Buyer. “Order” means any purchase order or similar instrument issued by Buyer to Seller to purchase Goods. Seller and Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. “Business Day” means the normal operating hours of PSI – Monday through Friday 7:00 a.m. to 5:00p.m. Local Standard Time excluding all PSI holidays.
ACCEPTANCE: The terms and conditions included in this “Terms and Conditions of Sale” document (hereinafter this “Agreement”) apply to all Offers made by Seller to Buyer and all Buyer’s Orders accepted by Seller. Acceptance of Buyer’ Orders, and any changes or amendments thereto, are expressly conditioned upon Buyer’s assent to these terms and conditions. Unless specifically agreed to in writing by a duly authorized representative of Seller, Seller objects to and is not bound by, any terms of conditions that differ from or add to the terms and conditions specified herein. Seller’s failure to object to any terms and conditions or any other provisions contained in any communication from Buyer, including, but not limited to, Buyer’s Orders, does not waive any of the terms and conditions specified herein. Seller’s acceptance of any resulting Order or Buyer’s receipt of Goods, whichever occurs first, will conclusively evidence Buyer’s unconditional acceptance of these terms and conditions. An Order minimum of $100.00 USD applies.
PRICES: Unless stated otherwise in writing by Seller, all prices are stated in U.S. Dollars and the prices offered are valid for a period of thirty (30) days from the date of Seller’s Offer. The prices offered apply only to the specific quantities, specifications, and delivery schedules set forth in Seller’s Offer. Any variation in quantity, specifications, or delivery schedules may necessitate a price and/or delivery schedule adjustment. Unless stated otherwise, all prices for domestic deliveries are F.O.B. Seller’s place of shipment, as defined in the Uniform Commercial Code (UCC).
CREDIT APPROVAL AND PAYMENT: Standard payment terms for all Orders is payment up front unless other credit approval is granted by Seller to Buyer, subject to credit approval of Buyer by Seller. Credit terms, shipments, and performance of work are at all times subject to the approval of Seller’s Credit Department. Each shipment is a separate and independent transaction and payment must be made by Buyer accordingly. If, prior to shipment of Buyer’s Order, Buyer fails to fulfill the terms of payment of any prior invoice submitted by Seller, or if, in the opinion of Seller, Buyer’s financial conditions becomes impaired or unsatisfactory, Seller reserves the right to change, without notice, the terms of payment and/or delay or discontinue further obligations. All amounts due to Seller but not paid by Buyer on the due date bear interest payable by Buyer to Seller in U.S. Dollar at a rate that is equal to the lesser of (I) one and one-half percent (1.5%) per month, or (II) the maximum interest rate permitted under applicable law. Interest accrues on the balance of unpaid amounts as of the date on which portions of those amounts become due until the date payment is received by Seller. Buyer will also be liable to Seller for any expenses incidental to collection of past due amounts, including reasonable attorney’s fees and court costs. In the event of Buyer’s bankruptcy or insolvency, Seller is entitled to terminate any Order then outstanding and to receive reimbursement for termination costs and expenses as provided under Article 12, Termination for Default.
TAXES: Buyers should seek their own tax advice. The amount of any present or future sales, use, excise, import duty, or other tax applicable to the manufacture, sale, or lease of Goods will be the responsibility of the Buyer.
SHIPPING TERMS AND RISK OF LOSS: All domestic shipments by Seller are F.O.B. Destination, Freight Prepaid and Add, as defined in the Uniform Commercial Code. If Buyer contracts for shipment, risk of loss will transfer to Buyer upon Seller presenting goods to carrier. If Seller contracts for shipment, risk of loss for Goods will transfer to Buyer upon carrier presenting goods to Buyer.
TOOLING: Unless otherwise provided by special written agreement signed by Buyer and Seller, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by Seller for the purposes of filling Buyer’s Order remain the property of the seller.
PACKING AND PACKAGING: All packing and packaging materials provided by Seller will be new or of suitable recycled material. Wood packing materials will comply with international guidelines (NIMF 15) and be properly marked. (Any non-standard or special packing or packaging requirements requested by Buyer will be provided by Seller at additional cost to Buyer).
EXPORT COMPLIANCE; FOREIGN CORRUPT PRACTICES ACT: For any resale, export, or re-export of the Goods. Buyer must comply with all applicable export regulations; export licensing requirements, and the United States Foreign Corrupt Practices Act (FCPA), 15 U.S.C 78dd1 through 78dd3, as amended.
DELIVERY SCHEDULES AND FORCE MAJEURE: Shipping dates are approximate and require prompt receipt of all necessary Buyer-furnished information and materials if applicable. Seller is not liable for any damages, re-procurement cost, or penalties related to late deliveries. Without limiting the generality of the foregoing, Seller is not liable for delays due to force majeure, including, but not limited to, weather conditions, acts of God, acts of civil or military authorities, fires, strikes, job actions, floods, earthquakes, epidemics, quarantine restriction, war, terrorism, riot, supplier or vendor delays, or any other causes beyond the reasonable control of Seller. In the event of such delay, Seller will promptly notify Buyer and the date(s) of delivery will be deferred for a period commensurate with the time lost due to delay. If the excusable delay under force majeure continues for more than ninety (90) days, Seller and Buyer will each have the option of terminating the affected Order(s) under Article 11, Termination of Convenience.
TERMINATION FOR CONVENIENCE: Buyer may request to terminate Buyer’s Order for convenience in whole or in part and Seller agrees to cooperate with Buyer in attempting to make such arrangements conditioned on Buyer paying Seller for all deliveries made and for all work in process, including all applicable direct and indirect costs, settlements with suppliers, and related administrative, accounting, and legal costs, plus a normal profit. To the extent possible, Seller will use reasonable commercial efforts to divert materials and work in process from Buyer’s Order to other customers’ orders in order to minimize Buyer’s termination costs.
TERMINATION FOR DEFAULT: Either Party may terminate the Order if the Party breaches a material provision of this Agreement or of the Order. In the event that a Party (the “Defaulting Party”) is in breach of a material of this Agreement or the Order, the other Party (the “Non-Defaulting Party”) will submit a written cure notice to the Defaulting Party advising of such breach. The Defaulting Party will have five (5) days to cure breach. If the defaulting Party does not cure the breach within the five (5) day period, the Non-Defaulting Party may terminate the Order.
CHANGES, ORDERS AND AMENDMENTS: All change order requests must be submitted by the Buyer to the Seller in writing and will not be effective unless and until Seller consents in writing to the change. Seller will advise Buyer in writing of the price and/or delivery schedule impact, if any, of the change request. Seller’s acceptance of changes will be subject to Buyer’s agreement to any price and/or delivery schedule adjustments.
LIMITED WARRANTY: If applicable, Seller warrants that the Goods delivered under Buyer’s Order will be free from defects in material and workmanship for a period of one of the following as specified in quote and/or invoice: a. Twelve (12) months from the date of shipment arrival b. Six (6) months from the date of shipment arrival c. Ninety (90) days from the date of shipment arrival d. Sixty (60) days from the date of shipment arrival e. Thirty (30) days from the date of shipment arrival f. As-Is: Goods will be packaged and delivered to Buyer untested. No warranty coverage applies. g. Extended Warranty: 1. Six (6) months from the end of the standard warranty 2. Ninety (90) days from the end of the standard warranty 3. Thirty (30) days from the end of the standard warranty If no warranty is specified in a quote and/or invoice, unit is sold as-is, as specified in Article 14f listed above. (See sec. 16 for warranty exceptions.) The specific warranty for a given product is in effect on the date of arrival of Goods at the Buyer’s facility. The specific extended warranty for a given product is in effect from the end of the standard warranty. All instrument parts are covered under this warranty except for items specified as “consumables” by the Original Equipment Manufacturer. If Seller is installing the instrument as part of the agreement between Seller and Buyer, Buyer will provide a visual inspection of the packaging upon delivery and notify Seller of any visible damages that may have occurred during shipping. If Seller is not providing installation services, Buyer will inspect the Goods upon arrival of Goods at the Buyers facility for any defects in material and workmanship and notify Seller of any defects in material and workmanship within ten (10) business days. In the event that Buyer identifies any defects in material or workmanship thereafter, Buyer will notify Seller of the defective Goods within ten (10) business days and of the specific nature of the defect in accordance with Article 16, Return Authorization. Seller, at its sole discretion, will either repair or replace such Goods found by Seller to be defective. Instrument repair labor will be provided by Prodigy Scientific, Inc. or approved vendor. Seller reserves the right to require that the goods be shipped to a location of its choosing for bench repair services. All costs of dismantling, reinstallation, freight, and time and expense of Seller’s personnel for site travel and diagnosis under this limited warranty clause shall be borne by the Seller unless accepted in writing by Buyer. Goods repaired and parts replaced during the warranty period will be covered under warranty for the remainder of the original warranty period, or ninety (90) days, whichever is longer. THESE EXPRESS WARRANTIES, INCLUDING REMEDIES, ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS INTENDED OR GIVEN IN THE CASE OF GOODS OTHER THAN THOSE OF SELLER’S OWN MANUFACTURE, SELLER MAKES NO WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED.
WARRANTY EXCEPTIONS: Seller’s warranty does not apply to replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power source, unsuitable environmental conditions, accident, misuse, user induced contamination, improper installation, modification, repair, storage or handling, acts of god, inclement weather, or any other causes not the fault of Seller and shall be at Buyer’s expense. Also, any repairs or modifications done by any party other than Prodigy Scientific, Inc. unless otherwise authorized are not covered under this warranty and may, at Seller’s discretion, void any warranty. All costs of dismantling, reinstallation, freight, and time and expense of Seller’s personnel for site travel and diagnosis necessitated by conditions listed under the EXCEPTION clause shall be borne by the Buyer unless accepted in writing by Seller. Unless otherwise specified in the purchase agreement, Buyer’s choice to decline installation of goods by Seller’s authorized personnel may void any and all warranties.
RETURN AUTHORIZATIONS: Buyer will promptly notify Seller of any nonconformance(s) in the Goods and afford Seller a reasonable opportunity to inspect the Goods. No Goods may be returned without Seller’s prior authorization, as evidenced by a return authorization. Once a return authorization number is obtained, Buyer will return defective Goods transportation and insurance prepaid in accordance with instructions issued by Seller. Failure to follow Seller’s return procedures may result in lost Goods, delays, additional services, restocking charges, warranty denial, or refusal of shipment. The return authorization number must appear on the shipping label along with all paperwork associated with the return. Seller has the right to reject Goods returned without the correct return authorization number clearly marked on the outside of the shipping container. Granting a return authorization number does not necessarily mean that a credit will be approved or that the evaluation or repair will take place without a fee. Credit requests are subject to restocking charges. Typical restocking charges are a minimum of fifteen percent (15%) for spare parts and consumables, a minimum of twenty percent (20%) for inventory (standard) Instruments, and minimum thirty five percent (35%) for configured (custom) products. All credit returns must be made within sixty (60) days of original invoice. If Seller determines that the goods are not covered by warranty (see Article 14, Limited Warranty,) a purchase order for Seller’s usual charge must be received before repair or replacement, including without limitation when Seller determines that the goods were damaged after delivery. Seller reserves the right to dispose of the goods if the Buyer does not promptly pay the evaluation fee and related charges.
INDEMNIFICATION: Each Party (the “Indemnifying Party”) will hold harmless and indemnify the other Party (the “Indemnity”) against all claims, judgments, costs, and fees, including attorney fees, relating to infringement of U.S. patents, designs, copyrights, or trademarks to the extent that the infringing Goods are manufactured, sold, or used in whole or in part to the indemnifying Party’s specifications, designs, drawings, or other technical data. To the extent that one Party’s employees or agents enter on the property owned or controlled by the other Party, the first Party will indemnify and hold harmless the other Party, its officers, directors, and employees for any property damage or bodily injury or death caused by the first Party’s employees or agents.
LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES IS EITHER PARTY LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, MULTIPLE, ADMINISTRATIVE, OR PUNITIVE DAMAGES, OR ANY DAMAGE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT, WHETHER BASED UPON BREACH OF THIS AGREEMENT, WARRANTY, OR NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW, OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S TOTAL LIABILITY INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR INDEMNITY, DEFENSE, AND HOLD HARMLESS OBLIGATIONS IS LIMITED TO NO MORE THAN THE AMOUNT PAID TO SELLER UNDER BUYER’S ORDER. BUYER AGREES TO INDEMNIFY SELLER FOR ANY EXCESS AMOUNTS, TO THE EXTENT THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISION(S) OF THIS AGREEMENT, SUCH PROVISION(S) WILL BE REGARDED AS AMENDED TO WHATEVER EXTENT REQUIRED TO MAKE SUCH PROVISION(S) CONSISTENT WITH THIS PROVISION.
ARBITRATION AND LAW: Disputes that arise under this agreement or Buyer’s Order that cannot be settled amicably by the Parties will be settled by arbitration in San Diego, California in the United States of America under the prevailing rules of the commercial conciliation and arbitration rules of the American Arbitration Association. Judgment upon the arbitration award or decision may be entered in any court of competent jurisdiction. Arbitration awards and decisions are subject to Article 18, Limitation of Liability. The laws of the State of California, excluding its conflicts of law’s provisions and excluding the United Nations Convention of the International Sale of Goods (“CISG”), govern the interpretation and enforcement of the Agreement and Buyer’s Order.
ASSIGNMENT: Buyer may not assign or transfer this Agreement or any Order, in whole or in part, without the prior written approval of Seller.
ETHICS AND VALUES: Seller is committed to uncompromising ethical standards, strict adherence to law, and customer satisfaction. Buyer is encouraged to communicate any concerns or questions regarding the ethics and value to Prodigy Scientific, Inc., at 888-589-4615.
UNENFORCEABLE PROVISIONS: In the event that one or more provisions of the Agreement document is held to be unenforceable, the remaining provisions apply in full and the invalid or unenforceable provision will be replaced by a provision that lawfully enforces the Parties’ intention underlying the invalid or unenforceable provision.
SURVIVAL: The following Articles will survive the termination or expiration of this Agreement or any Order: 1: Definitions; 4: Credit Approval and Payments; 5: Taxes; 6: Shipping Terms and Risk of Loss; 7: Tooling; 9: Export Compliance; Foreign Corrupt Practices Act; 10: Delivery Schedules and Force Majeure; 11: Termination for Convenience; 12: Termination for Default; 14: Limited Warranty: 17: Indemnification; 18: Limitation of Liability; 19: Arbitration and Law; 20: Assignment; 22: Unenforceable Provisions: and 23: Survival.
WHOLE AGREEMENT; AMENDMENT: This document is the entire understanding between the Parties, and it supersedes all previous or additional agreements, arrangements and drafts. This document may be amended or modified only by written agreement of duly authorized representatives of both Parties. Version September 12, 2018