Terms and Conditions of Sale
This Agreement sets forth the Terms and Conditions for Goods manufactured and/or supplied, and services provided, by Distributed Sensing Technologies, LLC (“Seller”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise. agreed by both parties in a previously-executed written agreement signed by authorized representatives of both the Seller and Buyer, these Terms and Conditions establish the rights, obligations and remedies of Seller and Buyer which apply to this offer and any resulting order or contract for the sale of Goods and/or services (“Goods” or “Products”). Any provisions contained in any document issued by Buyer are expressly rejected and if the Terms and Conditions in this Agreement differ from the terms of Buyer's offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer's document. Buyer's receipt of Goods or Seller's commencement of the services provided hereunder will constitute Buyer's acceptance of this Agreement.
The price for the Goods shall be Seller’s quoted price, as provided in Order Quote(s) issued by seller or an authorized representative of the Seller. All prices quoted by Seller or Seller's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation. All prices published by Seller may be changed at any time without notice as a result of those factors.
Taxes and Other Charges
Any government tax, fee, duty or charge on the sale, purchase, delivery or use of the Goods and/or services sold hereunder shall be paid by Buyer, in addition to the Purchase Price, unless otherwise agreed. Certain Goods are subject to international export control regulations. Buyer shall be responsible for compliance with all regulations related to the export of Goods to end-users.
Terms of Payment
Unless otherwise agreed, payment is due in U.S. Dollars within fifteen (15) days of the date of shipment. However, Seller reserves the right to require payment in advance. Charges for services are due upon receipt of invoice. Interest in the maximum amount permitted by law may be charged on past due invoices. Buyer shall reimburse Seller for all costs and expenses incurred in the collection of amounts past due, including attorneys' fees. If the Buyer becomes bankrupt or insolvent, or a proceeding is brought by or against Buyer under such laws, Seller may cancel any outstanding order, and Buyer shall reimburse Seller for its cancellation charges. The Seller prefers to receive payment via ACH or other electronic interface methods that directly exchange funds between the Buyer's and Seller's bank accounts. The Seller also accepts checks mailed to one of its lockbox remittance locations. Although the Seller does accept credit card payments at the time of purchase, it does not accept credit card payments after the point of sale.
The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. The delivery and/or shipping schedule is the best estimate possible based on conditions existing at the time of Seller's Purchase Order Confirmation or Seller's quotation and receipt of all specifications, as applicable, and in the case of non-standard items, any such date is subject to Seller's receipt of complete information necessary for design and manufacture. Seller shall not be liable for any delays, loss or damage in transit or for any other direct, indirect, or consequential damages due to delays, including without limitation, loss of use. Seller will have the right, at its election, to make partial shipments of the Goods and to invoice each shipment separately. Seller reserves the right to stop delivery of Goods in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder.
Unless otherwise mutually agreed to in writing by the parties, delivery shall be Ex Works (INCOTERMS 2020). At Buyer’s request, Seller may, at Buyer's risk and expense, arrange for the delivery of the Goods to Buyer's site/facility and Buyer will pay, or reimburse Seller, for all freight charges, taxes, duties, entry fees, brokers’ fees, special, miscellaneous and all other ancillary charges and special packaging charges incurred. Any freight charges included in quotation are estimates and do not include insurance unless otherwise stated. Actual freight charges will be applied to the invoice.
Inspection and Product Acceptance
Buyer will promptly inspect and accept any Goods delivered pursuant to this Agreement after receipt of such Goods. In the event the Goods do not conform to any applicable specifications, Buyer will promptly notify Seller of such nonconformance in writing. Seller will have a reasonable opportunity to repair or replace the nonconforming Goods at its option. Buyer will be deemed to have accepted any Goods delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received Seller within ten (10) days of delivery. In the case of freight damage, cease unpacking, request immediate inspection from the carrier responsible for delivery, and notify Seller of the damage.
Title and Risk of Loss
Notwithstanding any provision of INCOTERMS 2020 or contained herein, and subject to Seller's right to stop delivery of Goods in transit, title to and risk of loss of the Goods will pass to Buyer upon delivery of possession of the Goods by Seller to the carrier; provided, however, that title to any software incorporated within or forming a part of the Goods shall at all times remain with Seller or the licensor(s) thereof, as the case may be.
Buyer may cancel orders for standard Goods (subject to fair charges for Seller’s expenses including handling, inspection, restocking, and freight), provided that Buyer returns such Goods to Seller at Buyer’s expense within ten (10) days of delivery and in the same condition as received. Custom Goods are non-cancelable and non-returnable.
Limitation of Warranty
The Seller agrees to correct for the original user of the Goods, either by repair (using new or refurbished parts), or at the Seller’s election, by replacement (with a new or refurbished product), any defects in material or workmanship which develop during the warranty period. The warranty period is twelve (12) months from date of purchase, as cited on the purchase invoice. Defects covered by the warranty may include the failure of discrete components (such as pumps or flow rate sensors) or the hardware unit as a whole. Unless otherwise noted, normal use is defined as operation in a dry and secure environment with temperatures ranging from 5 to 40 ºC, while following all instructions provided in the manual(s) and datasheet(s). The warranty does not cover loss or incidental damage, such as (but not limited to) water damage incurred during outdoor operation. Disassembly of the sensors, enclosures, and any other hardware is strictly forbidden, and instantly voids all warranty coverage. This warranty is void if the Goods have been misused, neglected, subjected to accidental or intentional damage, or is not properly installed, maintained, or cleaned according to the requirements of the manual. Seller makes no warranty with respect to, and shall have no liability in connection with, Goods which are incorporated into other products or equipment, or which are modified by any person other than Seller. The foregoing is IN LIEU OF all other warranties and is subject to the LIMITATIONS stated herein. NO OTHER EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE OR MERCHANTABILITY IS MADE. WITH RESPECT TO SELLER’S BREACH OF THE IMPLIED WARRANTY AGAINST INFRINGEMENT, SAID WARRANTY IS LIMITED TO CLAIMS OF DIRECT INFRINGEMENT AND EXCLUDES CLAIMS OF CONTRIBUTORY OR INDUCED INFRINGEMENTS. BUYER’S EXCLUSIVE REMEDY SHALL BE THE RETURN OF THE PURCHASE PRICE DISCOUNTED FOR REASONABLE WEAR AND TEAR OR AT SELLER’S OPTION REPLACEMENT OF THE GOODS WITH NON- INFRINGING GOODS.
Warranty Service Procedure
Goods in breach of warranty should be returned to the Seller for service. Buyer is responsible for all shipping and packaging costs both to and from the servicing center (Address: DST Service Center, 10 Hall Drive, Orinda, CA 94563). Buyer must include the original order invoice and a short description of the issue(s) in the package, or send electronically to firstname.lastname@example.org prior to shipment. Pre-paid postage for return shipment should also be included. Once at the service center, the Goods will be repaired or replaced at Seller’s option. If repaired, a report will be provided outlining the services rendered. If replaced, the Goods provided will be identical to that returned for service (same optional modules and accessories). Both repaired and replacement Goods are covered under the original Warranty Period: twelve (12) months from the original purchase date.
Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, THE EXCLUSIVE REMEDY OF THE USER OR BUYER, AND THE LIMIT OF SELLER'S LIABILITY FOR ANY AND ALL LOSSES, INJURIES, OR DAMAGES CONCERNING THE GOODS (INCLUDING CLAIMS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) SHALL BE THE RETURN OF GOODS TO SELLER AND THE REFUND OF THE PURCHASE PRICE, OR, AT THE OPTION OF SELLER, THE REPAIR OR REPLACEMENT OF THE GOODS. IN THE CASE OF SOFTWARE, SELLER WILL REPAIR OR REPLACE DEFECTIVE SOFTWARE OR IF UNABLE TO DO SO, WILL REFUND THE PURCHASE PRICE OF THE SOFTWARE. IN NO EVENT SHALL SELLER BE LIABLE FOR LOST PROFITS, BUSINESS INTERRUPTION, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES. SELLER SHALL NOT BE RESPONSIBLE FOR INSTALLATION, DISMANTLING OR REINSTALLATION COSTS OR CHARGES. No Action, regardless of form, may be brought against Seller more than 12 months after a cause of action has accrued. The Goods returned under warranty to Seller's factory shall be at Buyer's risk of loss, and will be returned, if at all, at Seller's risk of loss.
Buyer and all users are deemed to have accepted this LIMITATION OF WARRANTY and LIMITATION of LIABILITY, which contain the complete and exclusive limited warranty of Seller. This LIMITATION OF WARRANTY and LIMITATION of LIABILITY, may not be amended, modified or its terms waived, except by writing signed by an Officer of Seller.
During the life of Goods sold, Buyer agrees to use its best efforts to ensure that all safety and product information provided by Seller is provided to all users (customers, employees, and independent contractors). This may include warning labels, instruction manuals, and training users in the safe installation, use and maintenance of the Goods. Buyer agrees to defend, protect, indemnify and hold Seller harmless from and against all claims, losses, expenses, damages and liabilities to the extent caused by Buyer's negligence, including Buyer's failure to comply with the aforementioned safety obligations.
Seller shall not be liable for any damage, loss or expense suffered by Buyer as a result of any delay or nonperformance, when the delay or nonperformance is, directly or indirectly, caused by or arises from fires, floods, accidents, riots, acts of God, war, governmental interference, embargoes, strikes, labor difficulties, shortage of labor or materials, transportation delays, pandemic or epidemic, acts by third parties, acts by Buyer, delay by Seller's suppliers or contractors or any other causes beyond the reasonable control of the Seller.
Limitations on Use
If the Goods sold are manufactured to Buyer's specifications, or if the Goods are used in conjunction with products not supplied by Seller, then Buyer shall indemnify and hold Seller harmless from and against any suits, claims, losses, expenses, and other liabilities including costs and attorneys' fees, whether for loss, personal injury, infringement or otherwise, which result from Buyer's specifications or use of products not furnished by Seller. Goods or equipment furnished to Seller by Buyer shall be at Buyer's sole risk and expense. Unless agreed in writing by Seller, any tools, dies, or materials used in producing Goods to Buyer's specifications shall remain Seller's property.
Changes to Goods
Seller at its sole discretion may change the design or manufacture of any of its Goods without incurring any obligation to incorporate such changes into Goods manufactured for or delivered to Buyer prior to such changes. Seller shall not be obligated to implement any changes or variations in the scope of work described in Seller’s Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. This includes any changes or variations necessitated by a change in applicable law occurring after the effective date of this Agreement including these Terms.
Intellectual Property Infringement
Buyer has no authorization to make any representation, statement or warranty on behalf of Seller relating to any Goods sold hereunder. Buyer shall indemnify and defend, at its own expense, Seller against claims or liability for U.S. or applicable foreign patent, copyright, trademark or other intellectual property infringement and for product liability arising from the preparation or manufacture of the Goods according to Buyer's specifications or instructions, or from Buyer's unauthorized or improper use of the Goods or part thereof, or from any changes or alterations to the Goods or part thereof made by persons other than Seller, or from the use of the Goods in combination with products not furnished by Seller or from the manufacture or sale or use of Buyer products which incorporate or integrate the Goods.
If Seller discloses or grants Buyer access to any research, development, technical, economic, or other business information or "know-how" of a confidential nature, whether reduced to writing or not, Buyer will not use or disclose any such information to any other person or company at any time, without Seller's prior written consent. In the event that Buyer and Seller have entered into a separate confidentiality agreement (the “Confidentiality Agreement”), the terms and conditions of the Confidentiality Agreement shall take precedence over the terms of this paragraph.
All licenses to Seller’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such terms and for all other software, Seller grants Buyer only a personal, non-exclusive license to access and use the software provided by Seller with Goods purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Goods. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
This document, the transactions evidenced hereby and any dispute that arises shall be governed by the laws of the State of California, U.S.A., without regard to principles of conflicts of laws. The rights and obligations of the parties hereunder shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer irrevocably consents to the jurisdiction of the State and Federal Courts in California.
All payment, confidentiality and indemnity obligations, warranties, limitations of liability, product return, and ownership of materials provisions together with those sections the survival of which is necessary for the interpretation or enforcement of these Terms, shall continue in full force and effect for the duration stated in such provisions or the applicable statute of limitations.
Amendment and Modification
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. This Agreement is not an acceptance of any offer. All orders are subject to acceptance by Seller. Any action arising hereunder, or concerning the transactions evidenced hereby, in contract, in tort, or otherwise, other than an action for failure to pay, must be commenced within 12 months of the date the cause of action accrues. Seller may correct any errors in the typed portion of this document at any time.