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1.DEFINITIONS
A. The terms "Product" or "Products" mean all items including Equipment, Software, Documentation, and non-FRT of America products delivered or to be delivered under this Agreement as specified herein.
B. The term "Equipment" means FRT of America equipment and hardware to be delivered pursuant to the Agreement.
C. The term "Software" means FRT of America computer programs or programming, to be delivered pursuant to this Agreement, whether incorporated in the Equipment or delivered separately and whether or not there is a separate charge therefore. The term "Software" also includes updates, enhancements and new versions delivered pursuant to this Agreement.
D. The term "Documentation" means user manuals and technical notes for the Software and Equipment provided by Seller with respect to the use and maintenance of the Software and Hardware.
2. PRICES AND TAXES
Prices are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future. Any such tax, fee, or charge of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Seller and the Buyer shall be paid by the Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee, or a charge, at the time of sale or thereafter, the Buyer shall reimburse Seller thereof.
3. DELIVERY
a. Delivery will be made F.O.B., Seller's plant, Somers, Connecticut. The time of delivery is the time the product to be delivered is picked up by the carrier.
b. Title to the products, excluding Software, shall pass to the Buyer upon delivery thereof by Seller to carrier (F.O.B. Somers, Connecticut) and upon delivery the Buyer shall be responsible for and bear the entire risk of loss or damage to the products. Any products held or stored by the carrier after delivery shall be at the risk and expense of Buyer and such expenses will be invoiced to Buyer.
4. SHIPMENT
In the absence of specific shipping instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be collected, or if prepaid, will be subsequently invoiced to Buyer. Unless otherwise indicated, Buyer is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging and wooden crating. When special or export packaging is requested or, in the opinion of Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced.
5. SECURITY INTEREST
Seller hereby reserves and Buyer hereby grants a purchase money security interest in the products sold and the proceeds thereof, in the amount of its purchase price. In the event of default by Buyer of any of its obligations to Seller, Seller shall have the right to repossess the products sold hereunder and without liability to Buyer. In such event, Buyer agrees to make the products available to Seller so that Seller can repossess them without a breach of the peace. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect Seller's security interest. On request of Seller, Buyer will execute financing statements and other instruments Seller shall desire to perfect its security interest.
6. TERMS OF PAYMENT
Payment is due and payable in US Dollars in accordance with the schedule in the quotation. If acceptance test does not take place within 30 days after delivery of products, acceptance of equipment will be assumed. Accounts 30 days past due will be subject to a monthly charge at the rate of one and one-half percent (1.5%) per month or the maximum permitted by law, whichever is less, to cover the costs of servicing these accounts. Orders from customers with invoices that are 60 days overdue (i.e., not paid within 60 days of invoice date) will be accepted only on a C.O.D. or cash-with-order basis until credit is reestablished to Seller's satisfaction.
7. DATA AND PROPRIETARY RIGHTS IN DATA
Portions of the data supplied are proprietary to Seller. Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any products sold except where rights are assigned under written agreement by a corporate officer of Seller.
8. SALE CONVEYS NO LICENSE
Except as set forth below in paragraph 15 the products are offered for sale and are sold by Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, or otherwise, under any patent or other intellectual property claim with respect to which Seller can grant licenses covering complete equipment, or any assembly, circuit combination, method or process in which any such products are used as components. Seller expressly reserves all rights under such patent or other intellectual property claims.
9. LIMITED WARRANTY
Warranty on New Systems and Accessories:
Seller warrants to the original purchaser of the equipment that the equipment will be free from defects in material and workmanship for a period of one 12 months from date of delivery. Seller will replace or repair, at its option, the warranted equipment at no charge to the purchaser and will perform services at Sellers facility. For repairs performed at Sellers facility, the customer must contact Seller in advance for authorization to return the equipment and must follow Sellers shipping instructions.
Software Warranty:
Seller warrants that the media on which the Software is recorded shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery. It is the responsibility of the Buyer to perform routine backup on all data stored on computer hard drives. Buyer's sole and exclusive remedy, and Seller's sole and exclusive liability, shall be replacement of the media in accordance with this limited warranty.
Consumables Warranty:
All consumable parts (if applicable) shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery. All computer and data storage equipment not manufactured by Seller (such as computers, monitors, discs, keyboards, video and graphic printers) is warranted directly by the manufacturer.
Equipment sold for use outside the United States, or equipment which has been subjected to misuse, accident, abuse, operational error, neglect, unauthorized repair, alteration or installation is not covered by this warranty.
Warranty on Replacement Parts:
Seller warrants all replacement parts to be sold free from defects in materials or workmanship for a period of ninety (90 days) from the date received by the customer. Seller will repair or replace, at its discretion, such parts when returned to Seller. Customers must contact Seller in advance to obtain authorization to return parts and follow Sellers shipping instructions.
FRT of America does not warrant its products to meet specification under adverse environmental conditions. The products are warranted to operate within and as limited by the specifications. Site preparation/supplies such as electrical, suitable work surface, and vibration free environment are the responsibility of the Buyer.
The foregoing warranties and remedies are for the original purchaser's exclusive benefit and are nontransferable.
Except as herein provided, SELLER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE USE OR LOSS OF USE OF ANY PRODUCT, SERVICE, PART, SUPPLIES, OR EQUIPMENT. NOR SHALL SELLER BE LIABLE UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, DOWN-TIME, GOODWILL, DAMAGE TO OR REPLACEMENT OF EQUIPMENT OR PROPERTY, AND ANY COST OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH SELLERS PRODUCTS. SELLER SHALL HAVE NO LIABILITY WITH RESPECT TO DATA CONTAINED IN ANY PRODUCT RETURNED.
10. LIMITATION OF LIABILITY
Seller shall not be liable for any loss, damages, or penalty resulting from delay in delivery when such delay is due to causes beyond reasonable control of Seller, including but not limited to supplier delay, force majeure, act of God, labor strife, fire, explosion, or earthquake. In any such event, the delivery date shall be deemed extended for a period equal to the delay.
SELLER'S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY, WHICH MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
11. SUBSTITUTIONS AND MODIFICATIONS
Seller shall have the right to make substitutions and modifications in the specifications of products sold by Seller provided that such substitutions or modifications will not materially affect overall product performance.
12. CANCELLATION
This contract may be canceled by Buyer only upon the payment of reasonable cancellation charges, which shall include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by Seller, and a reasonable profit. In the event of cancellation, Buyer will have no rights in partially completed goods.
13. BANKRUPTCY
If Buyer shall become bankrupt or insolvent or compounds with his creditors or commences to be wound up or suffers a receiver to be appointed, Seller shall be at liberty by notice in writing to cancel this contract without judicial intervention of declaration of default of Buyer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to Seller.
14. SOFTWARE LICENSE
Buyer is hereby granted a non-transferable, non-exclusive, fully paid, perpetual license to use the Software and the Documentation, solely in conjunction with the Product purchased under this Agreement and solely for use by Buyer for its internal business purposes. Buyer receives no title or ownership rights to such Software or Documentation. This Agreement does not entitle Buyer to the receipt or use of, or access to Software source code or any right to reproduce the Software or Documentation, and Buyer agrees that it shall no de-compile, reverse engineer or otherwise attempt to gain access to the Software source code. Except for the license granted in this Paragraph 15, all right, title and interest in the Software and Documentation shall remain exclusive property of Seller or its licensors.
15. CONFIDENTIALITY
Buyer acknowledges that by reason of its relationship to Seller hereunder it will have access to certain information and materials concerning Seller's technology and products that are confidential and of substantial value to Seller, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Buyer agrees that it will not use in any way for its own account, except for operation and maintenance of the Products purchased from Seller, or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by Seller. Buyer shall take every reasonable precaution to protect the confidentiality of such Confidential Information. Upon request by Buyer, Seller shall advise whether or not it considers any particular information or materials to be Confidential Information. Buyer shall not publish any technical description of the Products beyond the description published by Seller. Buyer acknowledges that Seller's Confidential Information is unique property of significant value to Seller, and that unauthorized use or disclosure thereof would cause Seller irreparable harm that could not be compensated by monetary damages.
16. TERMINATION
Termination for Breach:
If either party breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party shall have the right to terminate this Agreement at any time; provided if a breach cannot be cured within thirty (30) days but is capable of cure the breaching party shall not be in default if, within thirty (30) days of receiving notice of breach, in good faith, it begins and continues to attempt to cure the breach. In such case, the breaching party shall have a reasonable time to cure the breach before being in default. Buyer's breach of payment obligation constitutes a default the date the payment is due and Seller shall have the right to terminate the Agreement immediately. Survival of Provisions:
Sections 5, 6, 7, 9, 10, 15, and 17 shall survive the cancellation or termination of this Agreement for any reason.
17. MISCELLANEOUS
Acceptance by Buyer - Entire Agreement:
The terms and conditions as set forth herein shall constitute the entire agreement between Seller and the Buyer and supersede all previous agreements and understandings whether oral or written, between the parties hereto with respect to the subject matter of this
Agreement and no agreement or understanding varying or extending the same shall be binding upon either party unless in a written document signed by both parties. Seller shall not be bound by any terms of Buyer's order, which are inconsistent with the terms herein set forth. Acceptance by Buyer of these terms may be made either by written acceptance, or by receipt by Buyer of delivery of any products described on the face of this document and failure by Buyer to return the same within five (5) days following delivery of such products as herein provided. This contract shall not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not made a part of the contract by its express terms. No modification to this Agreement, nor any waiver of any rights, shall be effective unless assented to in writing by the party to be charged.
The failure of Seller to enforce at any time any of the provisions of this contract, or to exercise any election of option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this agreement of any part thereof, or the right of Seller thereafter to enforce each and every such provision.
If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
Buyer hereby acknowledges that he has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
Applicable Law:
This contract between the parties is made, governed by, and shall be construed in accordance with the laws of the State of Connecticut.
Jurisdiction and Venue:
The Connecticut state courts of Connecticut (or, if there is exclusive Federal jurisdiction, the applicable United States District Court) shall have exclusive jurisdiction and venue over any dispute arising out of this agreement and sale, and Buyer hereby consents to the jurisdiction of such courts.
Errors:
Stenographic and clerical errors are subject to corrections.
Compliance:
Buyer shall comply with all applicable laws and regulations. Buyer understands that Seller is subject to regulation by agencies of the United States Government, including the U.S. Department of Commerce and Defense, which prohibits export or diversion of the Products to certain countries. Regardless of any disclosure made by Buyer to Seller of an ultimate destination of the Products, Buyer warrants that Buyer will not export, either directly of indirectly, any Products without first obtaining any and all necessary approvals from the U.S. Department of Commerce or any other agency or department of the United States Government as required.
Force Majeure:
Non-performance of either party, except Buyer's payment obligation shall be excused to the extent that performance is rendered impossible by strike, fires, flood, governmental acts or orders or other restrictions, failure of suppliers, lack of transportation or any other reason where failure to perform is beyond the control of the non-performing party.
Successors and Assigns:
Buyer may not assign or delegate or otherwise transfer its licenses, rights or duties under this Agreement except with prior written consent of Seller. Seller or any successor entity may assign all or part of the right to payments under this Agreement. Any prohibited assignment will be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties thereto and successors and assigns.
Notices:
All notices and other communications pertaining to this Agreement shall be in writing and shall be deemed delivered upon personal delivery or three (3) days after deposit in U.S. mail via certified mail, return receipt requested, postage prepaid. All notices of communications between Buyer and Seller pertaining to this Agreement shall be directed to the address specified in this Agreement.
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