A&D ENGINEERING, INC. TERMS AND CONDITIONS OF SALE
2. Payment and Delivery.
2.1 Prices. Prices are based on A&D’s commercial price list (including pricing on the A&D website) or as set forth in a Quotation. A&D’s prices exclude, and Buyer shall be responsible for, all taxes or levies of whatever nature imposed on the transactions specified in the order, but excluding taxes based on A&D’s net income. All prices are in U.S. dollars. Payment terms are net thirty (30) days from the date of invoice unless otherwise specified in the Quotation. All payments shall be in U.S. dollars. A&D may charge interest for past due balances at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law. Products will be billed when shipped (with partial shipments allowed), Support will be billed in advance and Services will be billed as described in the Quotation (plus travel and subsistence expenses). A&D shall retain a purchase money security interest in all Products and the proceeds thereof until Buyer has made payment in full to A&D of all sums due, including late fees and collection costs. A&D reserves the right to change any credit or payment terms extended to Buyer at any time. A&D may, at its option, require partial payment or full payment in advance.
2.2 Delivery and Cancellation. Delivery and shipment dates are approximate. A&D shall make reasonable efforts to meet quoted delivery date(s); however, A&D shall not be liable for any failure to meet such date(s). No order may be terminated, canceled, or modified by Buyer unless agreed to in writing by A&D. All shipments are FCA (Incoterms 2010), A&D’s warehouse with transportation and insurance at the expense of Buyer. If carrier information is not specified in the order, A&D will select the transportation company. Within three (3) days of delivery, Buyer shall fully examine the packaging of the Product delivered for damage, make all applicable complaints and claims arising out of such delivery to the carrier in writing, and shall provide a copy to A&D. Products will be deemed accepted unless Buyer notifies A&D of nonconformity of the Products to their published specifications within five (5) days following receipt at the designated shipment address. Prior to acceptance, A&D may at its option, repair, replace or issue a credit for nonconforming Products after receipt of notice of nonconformity. Product returns (whether pursuant to this Section 2.2 or Section 7) must be accompanied by a Return Materials Authorization (“RMA”) from A&D. Products may not be returned unless they fail to conform to their specifications. Returns are subject to a 20% restocking charge.
3. Installation (where applicable). All installation of Products by A&D is subject to Buyer’s compliance with applicable site readiness requirements. Buyer will be responsible for the connection of such Products to any utilities and for any non-standard installation services (such as the shoring of floors, the widening of doorways, and second floor delivery), and A&D will notify Buyer approximately ninety (90) days prior to the scheduled installation date to allow Buyer to provide for and coordinate such services. Except as otherwise agreed by the parties, Buyer will be responsible for having all site preparations completed on the estimated delivery date and ready for installation of the Products. Buyer will reimburse A&D at A&D’s standard Service rates for any extra time and/or travel by A&D made necessary by any delays not caused by A&D. Upon completion of installation, A&D’s representatives will demonstrate proper Product operation by performing the applicable A&D Buyer Acceptance Procedure (“BAP”). Buyer shall provide a representative to be present during installation, who can assist where necessary. When no representative is present or assistance from Buyer is not available when required by A&D, A&D may discontinue installation and charge Buyer for any additional costs incurred at A&D’s standard Service rates. If union action or influence requires union labor to complete any installation of Products, then such installation shall be completed at Buyer’s expense under the engineering supervision of A&D. Product acceptance shall occur upon the earlier of (1) Buyer’s execution of A&D’s acceptance form, which is the final step in the BAP for each Product, (2) completion of the applicable BAP, (3) use of any such Product by Buyer, its agents, employees, or licensees, for any purpose other than testing after its receipt, or (4) two months after delivery of the Product. A&D shall not be required to provide installation services later than two (2) months following delivery of the Product.
4. Performance of Services. In consideration of Buyer’s timely payment, A&D shall perform the Services set forth in a mutually agreed upon Statement of Work (“SOW”) attached to or as specified in a Quotation.A&D shall use commercially reasonable efforts to perform such Services according to the mutually agreed upon schedule set forth in the SOW. Whenever any event delays or threatens the timely performance of the Services, A&D will make commercially reasonable efforts to notify Buyer of such event and furnish all relevant details. If A&D is unable to meet the schedule for any Services, A&D and Buyer shall meet in good faith to discuss possible solutions, including revising the schedule at no additional cost to Buyer, provided that such revision does not add new Services to the SOW. Support will be provided in accordance with A&D’s standard support policies for the package purchased by Buyer. Buyer and A&D may agree upon changes to a SOW from time to time in writing, but no change shall be effective until an amended SOW is executed. A&D shall own all right, title, and interest in all inventions and discoveries newly developed in performing the Services.Buyer shall provide A&D with sufficient access to the Products and Buyer’s premises and personnel to perform its obligations.
5. Licenses. A&D retains for itself all intellectual property rights in and to all Products and Buyer will have no right or license (whether by implication, operation of law, estoppel or otherwise) in or to any intellectual property right of A&D. Buyer shall not alter, remove, or obscure any copyright notices, trademark notices, or other proprietary or confidentiality notices that are: (i) placed or embedded by A&D or its suppliers or licensors in the Products or documentation; (ii) displayed when the Products are run; or (iii) applied to the Products or documentation, their packaging, labels, or any other materials provided hereunder. All licenses for software integrated into or provided with the Product are provided to the Buyer as part of the end user license agreement accompanying the Product. Buyer is granted a limited license to use any software or firmware integrated or provided with the Product only for so long as Buyer shall own the Product. Buyer shall not decompile, disassemble, or reverse engineer any part of a Product except to the extent such prohibition is void under applicable law. Buyer must ensure that anyone with authorized access to the Products complies with these provisions.
6. Confidential Information. As used herein, “Confidential Information” means any: (i) non-public information of a party, including, without limitation, any information relating to a party’s current and planned products and services, technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts and marketing plans; (ii) These Terms; (iii) other information that is marked as “Confidential” or some other label indicating its confidential nature or, if disclosed orally, is identified as confidential at the time of such disclosure; or (iv) information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Either party may have access to the other party’s Confidential Information. The party receiving the Confidential Information (“Recipient”) agrees to hold the disclosing party’s (“Discloser”) Confidential Information in confidence for a period of five (5) years following the date of disclosure of such Confidential Information. The Confidential Information may be disclosed only to employees or contractors of Recipient with a “need to know” and who are instructed and agree not to disclose the Confidential Information and not to use the Confidential Information for any purpose, except as set forth herein. Recipient shall have appropriate written agreements with any such employees or contractors sufficient to comply with these Terms. Recipient agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of these Terms. Recipient may disclose the Discloser’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental or regulatory body, provided that the Recipient gives prompt written notice thereof to Discloser (to the extent legally permitted) and assistance to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure. Confidential Information does not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) Discloser discloses to third parties without restriction on disclosure; (iii) is disclosed to Recipient by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) is independently developed by Recipient without use of the Confidential Information of the Discloser; or (v) is previously known to Recipient without nondisclosure obligations as evidenced by written records. Recipient shall not be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made: (i) in confidence to a U.S. federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Recipient files a lawsuit for retaliation by Discloser for reporting a suspected violation of law, Recipient may disclose Confidential Information to its attorney and use the Confidential Information in the court proceeding, if Recipient files any document containing the Confidential Information under seal and does not disclose the Confidential Information except pursuant to court order. All Confidential Information, including copies made by Recipient, will remain the property of Discloser. It is understood and agreed that, notwithstanding any other provisions, a breach of this Section 6 may cause the Discloser irreparable harm for which recovery of money damages might be inadequate, and that Discloser shall therefore be entitled to seek timely injunctive relief, without posting bond, to protect its rights under these Terms, in addition to any and all remedies available at law.
7.1. General. A&D warrants the Products purchased hereunder to be free from defects in material and workmanship, and to conform to their published product specifications, under normal use and service, for the period specified in the warranty that accompanies the Products or as specified in the Quotation. This warranty does not extend to any damage or failure which results from: (i) improper Product repairs or any modification of the Product (in each case by other than A&D authorized personnel); (ii) misuse or abuse of the Product; (iii) improper installation or adjustment of the Product (which fails to conform to A&D’s provided instructions); (iv) use of the Product in an improper environment; (v) computer viruses and other changes to the operating system or environment which adversely affect the Product; (vi) defects, problems, or failures created by third party products; (vii) failure to maintain the Products as specified in the applicable Product documentation or (viii) acts of God, electrical power surges, or other causes external to the Products. The sole and exclusive remedy in the event of any breach of the foregoing warranty shall be for the Buyer to return the Product to A&D in accordance with A&D’s standard procedures for repair, replacement, or credit, at A&D’s option. Parts for which A&D has provided replacements shall, at A&D’s option, become the property of A&D. Replacement Products are warranted for the longer of ninety (90) days or the remainder of the original warranty.
7.2 Third Party Product Terms and Warranties. All third-party products that are separately identified in A&D’s price list, website or Quotation as third-party products (“3rd Party Products”) shall be governed by that third party’s terms and conditions, including, but not limited to, usage guidelines and restrictions, software licenses, warranties, and any other terms. A&D makes no representation or warranty with respect to the compatibility of 3rd Party Products with the Products and A&D shall have no liability with respect to 3rd Party Products. Buyer agrees to seek any remedies with respect to 3rd Party Products from the manufacturer of such 3rd Party Products.
7.3. EXCLUSIONS OF IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION 7, A&D AND ITS SUPPLIERS PROVIDE THE PRODUCTS, SUPPORT AND SERVICES “AS IS” AND EXPRESSLY DISCLAIM ANY WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, OR ANY PART THEREOF OR ANY SUPPORT OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
8. Intellectual Property Infringement.
8.1. Intellectual Property. A&D shall indemnify, hold harmless, and defend Buyer from and against all claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising from a claim brought by a third party that the Products as delivered to Buyer and used as specified in their documentation infringe any copyright, trademark, trade secret or patent right of a third party enforceable within the United States and Canada. A&D’s obligation is contingent upon Buyer providing A&D with: (i) prompt written notice of any such claim or action; (ii) sole control and authority over the defense and/or settlement of such claim or action; and (iii) reasonable information and assistance to settle and/or defend any such claim or action at A&D’s expense. Should the Products become, or in A&D’s opinion be likely to become, the subject of such a claim, or in the event A&D wishes to minimize its potential liability hereunder, A&D shall, at its option and expense: (i) procure for Buyer the right to continue to use the Products as provided herein, (ii) replace the Products with non-infringing, functionally equivalent products; or (iii) suitably modify the Products so that they are not infringing. In the event that none of the foregoing can be achieved using reasonable efforts, then A&D may at its option, require return of Products and refund a pro-rata portion of the price paid by Buyer for the Products returned depreciated over three (3) years. A&D shall not be liable for any costs or expenses incurred without its prior written authorization.
8.2. Exclusions. A&D shall have no obligation with respect to any claim, action or proceeding to the extent arising from: (i) modification of the Products by anyone other than A&D or its authorized agents; (ii) use of the Products in combination or conjunction with any equipment, data, devices or software not provided by A&D wherein the absence of such combination the applicable Product would not have been infringing; (iii) use of the Products in a manner other than for which it was intended; or (iv) use of other than the then-most current release of the Product if such infringement or claim would have been prevented by the use of such current release. This Section states A&D’s entire liability for any claim based upon or related to any alleged infringement of any patent or other intellectual property rights.
9. Bodily Injury. With respect to bodily injury liability to third parties, each party shall be responsible in such proportion as reflects its relative fault for damages arising from or in any way related to the use or operation of any Product.
10. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL A&D OR ITS SUPPLIERS OR LICENSORS OR BUYER BE LIABLE UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, LOST PROFITS, LOSS OF USE, OR LOSS OF OR DAMAGE TO DATA, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A&D AND ITS SUPPLIERS AND LICENSORS’ TOTAL LIABILITY IN DAMAGES OR OTHERWISE SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE HEREUNDER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE MATERIAL PARTS OF THE BARGAIN BETWEEN THE PARTIES AND THAT PRICES FOR THE PRODUCTS WOULD BE HIGHER WITHOUT THEM. Liability to third parties for bodily injury, including death resulting from use of the Products shall not be affected by the liability limitations stated above in this Section.
11. Export Compliance. Buyer acknowledges and agrees that the Products and related technology subject to these Terms are subject to the export control laws and regulations of the United States and other countries, and Buyer agrees to comply with all applicable laws and regulations. Buyer shall ensure that the Products and related technology are not (1) sold, transferred or diverted to any U.S. or E.U. sanctioned or embargoed country (including, but not limited to, Cuba, Iran, Sudan and Syria), unless authorized by U.S. export license or regulation; (2) sold, transferred, or diverted to any person, firm, or other entity listed in the U.S. Department of Commerce Denied Persons List or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals List, the U.S. Department of State’s Debarred Parties listing, or any E.U. or local country listing of sanctioned persons; (3) sold, transferred, or diverted to any nuclear weapons, nuclear power, nuclear research, chemical/biological weapons, or missile/rocket technology end-user or end-use; or (4) sold, transferred, or diverted in violation of any other applicable import/export laws, regulations, licenses, or government orders. Buyer shall promptly advise A&D in writing of any known or suspected sale, transfer, or diversion in violation of the foregoing. Buyer understands that A&D’s performance hereunder is subject to A&D’s receipt of all necessary licenses, permits, or approval from all relevant governments or their agencies for the import or export of the Products, and that A&D shall be free from all liabilities for deficient performance hereunder if such deficiency is caused by the non-receipt or late receipt of such licenses, permits, or approval.
12. Regulatory. The provisions of this Section 12 apply solely to medical device products.
12.1. Labeling. Buyer will retain all of A&D’s original labeling, without any additions, omissions, or changes on the Products. Labeling includes but is not limited to, instructions for use, manuals and certificates that are delivered with the Products in hard copy or electronically.
12.2. Compliance with Laws by A&D. A&D will comply with all laws, rules, orders and regulations of any federal, state, national, regional or local governmental authority applicable to it with respect to the manufacture, sale and delivery of the Products, including but not limited to the United States Food and Drug Administration (“FDA”) Quality System Regulation (“QSR”) (21 C.F.R. Part 820) and FDA requirements for registration, listing, labeling, complaint handling, medical device reporting, and reporting and recordkeeping for corrections, removals, recalls, market withdrawals, safety alerts and field notifications.
12.3. Compliance with Laws by Buyer. In connection with Buyer’s distribution, marketing, sale and delivery of Products, Buyer shall comply at all times will all applicable laws, rules, orders, and regulations of any federal, state, national, regional, or local governmental authorities, including, without limitation, applicable FDA regulations and any applicable import and export laws and regulations. Without limiting the foregoing, Buyer agrees to comply with all applicable regulations and requirements regarding recordkeeping, complaint handling, medical device reporting, and reporting and recordkeeping for corrections, removals, recalls, market withdrawals, safety alerts and field notifications applicable to distributors of medical products.
12.4. Complaint Handling for Medical Device Product. Buyer must inform A&D immediately when there is reasonable suspicion that a problem relating to the Products is occurring and provide information that enables A&D to properly investigate. Buyer shall promptly respond to all such inquiries and complaints. Any complaint received by the Buyer related to the Products shall be transmitted to the designated A&D contact in a timely manner using the Complaint Reporting form provided by A&D. Buyer shall assist any complaint investigation by A&D, as instructed by A&D.
12.5. Recalls and Field Safety Corrective Action for Medical Device Product. A&D shall have sole authority and obligation to declare a recall or “Field Safety Corrective Action” (FSCA) of any Product, if A&D believes that there is a potential significant health hazard or non-compliance with applicable government regulations. If a mandatory recall, withdrawal, FSCA or modification of the Product is required by a decision or ruling of a court of competent jurisdiction or by a ruling or regulation of a governmental agency, A&D shall be responsible for supplying modified Products or components thereof, to Buyer. Regarding any recall or FSCA, Buyer will provide A&D with all necessary information, including customer information if Product is resold by Buyer to customers. A&D agrees to use the customer information supplied by Buyer only for purposes of implementing the recall or FSCA. If local regulations require Buyer to be responsible for executing a recall, withdrawal, FSCA or modification of the Product, Buyer shall communicate to A&D the requirements and necessary actions prior to implementing such actions. A&D and Buyer agree to work cooperatively to facilitate any recall, withdrawal, FSCA or modification of the Product.
13. Resale of Products. The following provisions apply if A&D authorizes Buyer to purchase the Products for resale. In order to be authorized, Buyer must (i) receive written authorization from A&D to resell products and (ii) agree to and remain in compliance with the requirements of A&D’s then current partner/loyalty programs (“Program Documents”). Buyer may only resell the Products in the United States consistent with the Program Documents.Buyer shall at all times conduct business in a manner that reflects favorably upon the Products and the good name, goodwill,and reputation of A&D. Buyer shall make no representation, warranty, or guaranty to customers or to the trade with respect to the specifications, features or capabilities of the Products that are false, misleading, or inconsistent with the literature provided by A&D. Buyer shall comply with all applicable national, federal, state, provincial and local laws and regulations, including, without limitation, import and export laws and restrictions, national security controls, anti-corruption laws and other regulations of the United States or other applicable foreign or domestic agencies or authorities.
14. General. Neither party shall be liable for any delay in performance which is due to causes beyond its control. No claims, regardless of form, arising out of, or in any way connected with these Terms, the Products, Support, or Services may be brought by Buyer more than one year after the cause of action has accrued or performance has been completed or terminated, whichever is earlier. No term or provision shall be deemed waived by either party, and no breach excused by either party, unless the waiver or consent shall be in writing signed by an authorized representative of the party granting such waiver or consent. In the event any provision of these Terms shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. In any action to enforce these Terms, the prevailing party shall be entitled to seek recovery of all court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled. These Terms (along with the Quotation) contain the complete and exclusive statement of the terms of agreement of the parties with respect to this subject matter, and supersede all prior and contemporaneous understandings, representations, and warranties, written and oral. These Terms may be amended or modified only in a writing signed by both parties. In the event of a conflict, the documents shall be interpreted to give priority in the following order: (i) amendments or addenda to these Terms; (ii) Quotation; (iii) Program Documents; and (iv) Terms. The original of these Terms are in English and Buyer waives any right to have it written in any other language. L’original du présent Accord est en anglais et le Licencié renonce à tout droit de l’avoir écrit dans une autre langue.
15. Governing Law. The parties hereto knowingly and intentionally waive the right to a jury trial on any issue or dispute that may arise between them. Terms and Conditions of Sale: The undersigned agrees to pay for all purchases according to the terms of Creditor. No terms or conditions of purchase orders different from the terms of Creditor will become part of any sales agreement, purchase orders, or other documents unless specifically approved in writing by Creditor. The laws of the State of California shall be applicable to all suits arising under any agreement between the undersigned and the Creditor. All accounts shall be due and payable in San Jose, California. In the event of litigation, venue shall be in San Jose, California. Current Resale Certificate required with application or appropriate sales tax will be charged.