T E R M S & ...

T E R M S   &  ...
All quotations, goods, and services provided by Photometrics, a division of Roper Scientific, Inc. and/or Quantitative Imaging Corporation, doing business as QImaging (as applicable, “Seller”) or its representatives to any customer, distributor, original equipment manufacturer, end‐user or other purchaser (as applicable, “Buyer”) are furnished only on the terms and conditions stated herein (“Terms”). By ordering and accepting delivery of products and/or services (“Products”) from Seller, Buyer accepts these Terms and agrees that, unless modified by separate negotiated agreement as provided below, these Terms, together with the item, quantity, price, and similar terms as set out in Seller’s quotation, order acknowledgement, and/or invoice, constitute the entire agreement of the parties, superseding all other communications and documentation. Seller hereby expressly rejects any different or additional terms, preprinted or otherwise, contained or referenced in any purchase order or other documentation furnished by Buyer, whether before or after delivery of Products, even if receipt thereof is acknowledged by signature or otherwise. No waiver or modification of these Terms shall be binding on Seller unless set out in a separate negotiated agreement signed by an authorized officer of Seller. QUOTATIONS & PRICES: All prices are FCA Origin (Incoterms 2010) in US dollars and, unless otherwise specified in a Seller quotation, are subject to change without notice. Quotations are valid for 30 days, unless otherwise stated therein, and may be changed or withdrawn at any time prior to acceptance. Quotations to non‐U.S. Buyers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are valid only for quantities, terms, and payment schedule specified. Prices do not include any applicable sales, use, value added, excise, customs, import/export, or other taxes, tariffs, fees, duties, withholdings or like charges, domestic or foreign, related to the Products supplied hereunder. Any such amounts paid by Seller will be invoiced to Buyer in addition to the Product price, unless Buyer provides an exemption certificate acceptable to the applicable taxing authority. ORDERS & ACCEPTANCE: Orders must be presented in writing or via electronic means acceptable to Seller and will be binding only when accepted in writing by an authorized Seller representative. Seller reserves the right, without liability, to refuse any order, in whole or in part, or specify an alternate delivery schedule if orders from all sources exceed Seller’s inventory or ability to deliver. Seller may allocate available inventory and production in its sole discretion. For special order Products (not stock products of Seller), Seller will provide a quotation or acknowledgement outlining terms of acceptance including specifications, pricing, delivery schedule, and any clarifications to terms and conditions. Where orders are placed, acknowledged, and/or invoiced by electronic transmission, the data transmitted will be deemed “in writing” and “signed;” and any printout of electronic transmissions maintained in the ordinary course of business will be considered an “original” to the same extent and under the same conditions as other business records maintained in documentary form. Seller shall be entitled to assume that persons placing orders on behalf of Buyer (electronically or otherwise) are authorized to do so and to accept these Terms. CHANGE & CANCELLATION: Any changes requested by Buyer must be submitted in writing and are subject to written acceptance by an authorized Seller representative. Costs and/or delays resulting from such changes will be solely determined by Seller and binding upon Buyer. Accepted orders may be cancelled or rescheduled only with Seller’s written consent and payment of reasonable cancellation charges covering Seller’s associated costs. Seller may cancel or suspend performance of any order if Buyer fails to meet any of its obligations herein. PAYMENT TERMS: For customers without approved credit terms, payment is required prior to order acceptance via credit card, wire transfer, or other agreed payment method. Credit terms, if any, require Seller’s written approval and are measured from date of invoice. Seller may invoice parts of an order separately. Deposits or down‐payments, if any, are non‐refundable; no discount for early payment is authorized without Seller’s written consent. Payment terms will not be affected by any delay in delivery, installation or acceptance. Seller shall not be obligated to extend credit to Buyer and, notwithstanding credit approval, may modify payment terms or require prior payment, letter of credit, or COD if Buyer’s financial condition or payment record so warrants. If Buyer is delinquent in any payment due, a service charge (not to exceed 1.5% per month) may be charged on all past due balances, and Seller in its discretion may suspend production, institute credit hold procedures, and exercise any and all other available remedies, including set off. If Seller deems it necessary to refer an account to an agent or attorney for collection, all costs of collection (including reasonable attorneys’ fees) will be charged to Buyer’s account, up to the maximum allowed by law. Upon any bankruptcy, insolvency, or similar proceeding involving Buyer, Seller shall be entitled to cancel all open order(s) and receive reimbursement for cancellation charges as provided above. PACKAGING, DELIVERY & INSPECTION: Unless otherwise specified in Seller’s order acknowledgement, all deliveries are FCA Origin (Incoterms 2010) using Seller’s designated carrier. Title (except as to software) and risk of loss will transfer to Buyer upon issuance of the carrier’s bill of lading and, if not previously accepted, receipt of delivery by or on behalf of Buyer will constitute acceptance of these Terms. Seller will endeavor to deliver accepted orders promptly; but will not be liable for any delay in delivery or for loss or damage in transit. Buyer must inspect all items upon arrival and provide written notice to Seller, within five (5) days, of any claim for shortage or other nonconformance. If Buyer fails to give timely notice, all items will be deemed accepted and any right of rejection will be waived. Use or resale of Products in any manner following delivery will also constitute acceptance by Buyer. Claims for loss or damage in transit should be made directly to the delivering carrier. INSTALLATION & OTHER SERVICES: Product prices do not include any installation or other services which, if requested, will be provided at Buyer’s expense. Buyer is responsible for providing a suitable site with all required equipment and service and for taking all precautions reasonably necessary to prevent injury to Seller’s personnel at Buyer’s site. No services will be performed if Seller reasonably believes that conditions at Buyer’s site represent a safety or health hazard to Seller’s personnel. Buyer will reimburse Seller at its standard rates for any extra time, travel, or expense resulting from absence or inadequacy of rescheduling arrangements or delay or prolongation of installation caused by Buyer. RETURN POLICY: Products purchased directly from Seller by an end‐user Buyer may be returned within thirty (30) days from date of invoice in accordance with Seller’s “Thirty (30) Day Satisfaction Guarantee” for a refund equal to the original purchase price paid LESS THE ORIGINAL SHIPPING COST AND ANY INSTALLATION FEES. Proof of purchase is required. Products returned for refund or credit must be in the same condition as when they were shipped by Seller and in their original, unopened packaging. All returned items must be returned to Seller INSURED, with FREIGHT PREPAID by Buyer, properly boxed to prevent damage in transit. SELLER WILL NOT ACCEPT ANY C.O.D. PARCELS. The product must not be altered or damaged in any way and must be accompanied by all manuals, cables, documentation, and all other materials as originally shipped with the system. All returns (including returns for examination or repair under Warranty) must display an RMA number (obtained from a Technical Support Representative as set forth in the applicable product documentation) in a prominent location on the outside mailing label. PACKAGES NOT DISPLAYING THIS NUMBER WILL BE REFUSED. All stock items are subject to a 20% restocking fee. Special Order Products (not stock items at Seller) are not returnable or refundable under any circumstances. PRODUCT SPECIFICATIONS AND VALIDATION: All Products, when delivered by Seller, will substantially conform to Seller’s published specifications; however, Buyer is responsible for validation of each specific Product application and any use of Products as a component of, physically installed on, or in conjunction with other products or attachments not supplied or specified by Seller for such purpose, including all necessary testing and qualification, and will put in place all necessary protections to ensure that any failure or defect relating to the Products will not result in other or further liability, damage, or safety issues. Seller’s responsibility will in all events be limited to repair or replacement of the failed or defective Product(s) as provided in these Terms and will not include any further liability for or arising out of non‐Seller products with which Products may be installed, combined, or used. Seller reserves the right to discontinue or change the design or specifications of any product at any time, and will use commercially reasonable efforts to notify Buyer of any material change in specifications affecting form, fit or function. LIMITED WARRANTY: Seller’s Products are covered by standard, printed warranties provided with each Product. Such warranties, including all limitations and exclusions therein, are incorporated herein by reference. Such warranties will be effective only upon Seller’s receipt of full payment for the product(s) to be warranted. Any description of the Products is for the sole purpose of identification and does not constitute a warranty of any sort. Any sample or model provided or used in connection with any order is for illustrative purposes only and is not to be construed as a warranty that the Products will conform to the sample or model. Service required beyond the normal scope of warranty (see Exclusions below) or after expiration of the applicable Warranty Period will be billable repairs and Seller will charge Buyer its then‐current rates and prices for parts, labor and transportation. Buyer may also be billed for costs associated with products returned under warranty with no fault found. For non‐
QIMAGING: 19535 56th Avenue, Suite 101 > Surrey, BC, Canada V35 6K3 > tel 604.530.5800 > fax 604.648.8277 > www.qimaging.com
Warranty does not cover defects or problems EXCLUSIONS: Seller’s
caused by acts (or failures to act) by Buyer or third parties or by events beyond Seller’s reasonable control. Without limiting the foregoing, any warranty claim, support claim, or liability is excluded, and Buyer will be solely responsible, for any problem, failure, malfunction, defect, claim, damage, liability, or safety issue arising out of (1) inadequate or faulty installation (unless performed by Seller) or failure to provide a suitable installation environment; (2) accident, misuse, abuse, extraordinary wear and tear, or neglect, including without limitation damage in transit or storage; (3) misapplication, improper use, or other failure to follow Seller’s instructions and safety precautions, including use or storage of Products outside of normal or specified operating or environmental conditions or for purposes other than those for which they were designed; (4) use of Products in conjunction with, physically installed on, or as a component of equipment, hardware, software, components, services, accessories, attachments, interfaces, or consumables not supplied or specified by Seller, (5) computer viruses, failure of electrical power, acts of God such as fire, flood, wind, and lightning, or other causes external to the Products, or (8) latent defects discovered after expiration of the warranty period. Modification, disassembly, rewiring, re‐engineering, recalibration, and/or reprogramming of products other than as specifically authorized by Seller in writing is prohibited and will void all warranties. SOFTWARE: All software, including without limitation internal system code, firmware, and/or operating system software (”Software”) is licensed, not sold, and is provided upon the terms and subject to the conditions set forth in the applicable license agreement, the terms of which will prevail over any contrary terms and conditions herein. Buyer will be deemed to have agreed to the license terms by opening the media package or by installing or using the Software or the Product in which it is installed. Unless otherwise provided in the applicable license agreement, Seller grants Buyer, only for so long as Buyer owns the Product, a limited, personal, non‐exclusive, non‐transferable, license to use the Software only in machine readable form and only as part of the normal operation and maintenance of the Product with which it is provided. All rights not expressly granted to Buyer are expressly reserved. Buyer may not circumvent any usage or other restrictions imposed by any license manager, or copy or duplicate the Software, in whole or in part (other than one back‐up copy for archival purposes) or transfer, sublicense, distribute, sell, lease or otherwise provide or disclose the Software, or any portion thereof, including without limitation any use over the internet or through an application service provider model, or use the same for application development purposes. The license terminates when Buyer discontinues use of the Product with which it is provided. USE RESTRICTIONS & REQUIREMENTS: Buyer is responsible for compliance with all applicable laws, regulations, and requirements of legal authorities applicable to the purchase, shipment, import, export, transfer, sale, disposition, license, installation, operation, maintenance, use, resale, transfer, and/or disposition of Products supplied hereunder, including without limitation obtaining all required licenses, permits, and registrations, it being understood that Seller shall have no responsibility and makes no warranty regarding compliance with such requirements. Buyer may not (1) modify, alter, disassemble, or make any changes to the Products or related documentation, or permit any third party to do so, without Seller’s prior written consent; or (2) import, export, sell, transfer, service, store, or otherwise handle, distribute or use any Products, software, technical data, or other materials received from Seller, or direct products thereof, in any manner prohibited by applicable export control or other laws, restrictions, and regulations, or contrary to any written warning or instruction given by Seller herein, in the product documentation, on its website, or otherwise, or (3) make any representations or warranties on behalf of Seller as to the quality, merchantability, fitness for a particular use, or other features of the Products. Buyer shall hold Seller harmless from all claims, losses, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees and expenses) arising from any breach of these Terms. PROPRIETARY INFORMATION: Buyer acknowledges that Seller’s products are based upon and embody various confidential and/or proprietary technology, information, know‐how, and trade secrets of Seller. Seller and its suppliers or licensors (as applicable) shall exclusively own all inventions, technology, processes, methods, know‐how, trade secrets, and other proprietary information of any kind used or embodied in the Products, documentation, drawings, specifications, Software, and other items furnished by Seller, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of, Seller’s Proprietary Information, and shall use the same solely as required for its authorized use of Seller’s Products. Buyer may not directly or indirectly (1) copy, adapt, develop, reverse engineer, 3440 East Britannia Drive, Suite 100 > Tuscon, Arizona 85706
tel 520.889.9933 > fax 520.573.1944 > www.photometrics.com
recast, compile, decompile, translate, or create derivative works from any Products, Software, or other items provided by Seller, or permit any third party to do so, (2) remove, alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends, or (3) disclose or use Seller’s Proprietary Information for commercial purposes or in a manner detrimental to Seller. Disclosures of Proprietary Information may be made only to Buyer’s personnel having a need to know and a written obligation to protect such information no less restrictive than the restrictions herein. Buyer is responsible for any breach by its personnel. It is agreed that any breach of this Section may cause irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to prevent any violation, threatened or actual, in addition to any other remedies and without proof of actual damage. EXCUSABLE DELAY: Seller shall not be liable for any failure or delay in performing its obligations under these Terms or any contract with Buyer due to causes beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fire, strikes, floods, epidemics, delays in transportation, inability to obtain necessary labor, materials, components, or manufacturing facilities, or acts of Buyer, its employees, contractors, or agents. For delays resulting from such causes, performance will be correspondingly extended. LIMITATION OF LIABILITY: Seller shall have no liability for any loss, claim, or liability (including without limitation any claim of infringement) to the extent such claim arises out of (i) Products manufactured or modified based on Buyer’s designs or specifications, (ii) misuse, misapplication, improper or faulty installation, or use of Products in any manner or for any purpose other than as specified by Seller, (iii) modification, repair, or disassembly of Products other than by or as authorized by Seller; or (iv) use of Products in combination or conjunction with, physically installed on, or as a component of non‐Seller equipment, software, services, accessories, attachments, interfaces, or consumables, unless supplied or approved by Seller. Any claim against Seller, regardless of form, arising out of the Products or transactions to which these Terms apply must be brought within 2 years after the cause of action arises or performance hereunder is completed or terminated, whichever first occurs. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT LOSSES, COSTS, OR DAMAGES, HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF. SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT, STRICT LIABILITY, INDEMNIFICATION, OR OTHERWISE, AND NOTWITHSTANDING FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE BY BUYER AGAINST SELLER, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS. Buyer acknowledges that these limitations of liability are a material part of the bargain between the parties and reflected in product pricing, which would be higher without these limitations. UNITED STATES AS END USER: If the Products sold hereunder are pursuant to a contract or subcontract issued by an agency or department of the United States government, Seller agrees that the Terms (other the those with respect to price and payment) shall be deemed modified to the extent reasonably necessary for Buyer to comply with mandatory statutory procurement requirements imposed on Buyer by virtue of the fact that the Products procured hereunder are intended to be acquired, used, or consumed by an agency or a department of the United States. GOVERNING LAW & SEVERABILITY: These Terms, all transaction to which they may apply, and any disputes arising out of Products supplied hereunder shall be governed by and construed in accordance with the laws of the State of Delaware and the United States of America, without giving effect to any conflict of law provisions thereof. The United Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any international discovery and service of process conventions will be inapplicable. Each of these Terms is severable from the others, and Seller’s rights and remedies herein are cumulative and in addition to those available at law or in equity. In the event that any portion of these Terms is determined in any suit or proceeding to be invalid or unenforceable, such determination shall not affect the remaining Terms, all of which shall remain valid and enforceable. 19535 56th Avenue, Suite 101 > Surrey, BC, Canada V35 6K3
tel 604.530.5800 > fax 604.648.8277 > www.qimaging.com
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