Kistler Instruments Corp.
Except where otherwise specified by Kistler, the products or services purchased from Kistler are subject to the following terms and conditions:
1. Contract Formation
If this instrument is a quotation, whether or not responsive to a request from the Buyer, it constitutes the offer of Kistler Instrument Corporation (hereinafter “Kistler”) to the Buyer, and becomes a binding contract under the terms and conditions set forth herein when it is accepted by the Buyer. However, any such acceptance shall be valid only if made within thirty days of the date of this instrument or such other time period specified herein. If this instrument is an acknowledgment, it constitutes Kistler’s acceptance of the Buyer’s order, subject, however, to the terms and conditions set forth herein. Upon the creation of a contract, this instrument will recite the entire agreement between the parties with respect to the goods, equipment or services being purchased, and shall supersede any other agreement, writing, or understanding whether made before or after the date of this instrument. Thus, Kistler’s contractual obligations are expressly limited to the terms contained herein. The inclusion of any different or additional terms in any other instrument is objected to, and performance by Kistler shall occur with the express understanding that only the terms and conditions recited herein shall control.
Invoices for products and services shall be delivered to the Buyer as follows:
a) Orders consisting of only standard products, standard systems, spare parts, third-party components and/or operating software (e.g. operating systems and backup software) shall be invoiced upon shipment.
b) Orders consisting of only professional installation services, including support, integration and commissioning of systems, shall be invoiced as incurred.
c) Orders consisting of only custom application software licenses and custom software development, feasibility studies, training, travel, documentation and/or repair services shall be invoiced upon delivery.
d) Orders consisting of only support agreements, or extended hardware warranties shall be invoiced upon order acceptance.
e) Where an order has a significant hardware (custom or otherwise) and/or initial setup cost associated with the agreement, Kistler reserves the right to invoice the order on a milestone basis as follows:
i. 30% of the order upon order acceptance;
ii. 40% of the order upon hardware shipment;
iii. 20% of the order as a percentage of completion of integration;
iv 10% of the order upon completion of commissioning and runoff.
f) Hardware which is not subject to milestone billing will be invoiced upon shipment.
g) Software which is not subject to milestone billing will be invoiced upon shipment
3. Terms of Payment
a) All payments are to be made in U.S. funds, and without expense to Kistler. All prices are exclusive of any duties, brokerage fees, sales, use, value-added or other taxes, unless otherwise stated. Buyer shall be responsible for paying any such duties, brokerage fees and taxes.
b) Payment shall be cash with the Order or sight draft attached to an invoice or a bill of lading (or other shipping documents) at the option of Kistler.
c) When credit is extended by Kistler, invoices shall be due and payable within thirty days from invoice date. If any invoice is not paid when due, Kistler reserves the right to charge interest in the amount of 1.5% per month (18% per annum), or the highest rate allowable by law, whichever is lower, calculated from the date such unpaid amount was due, until paid. notwithstanding the foregoing, Kistler retains the option to refuse or to revoke credit, and to require immediate payment of all outstanding balances and payment on delivery for all future deliveries, or with respect to services provided hereunder, payment in advance of such services.
d) Buyer agrees to pay any expenses incurred in collecting any unpaid balance of the purchase price, or in recovering possession of goods, including reasonable attorney’s fees.
e) If Kistler extends credit to the Buyer, then for the purpose of securing payment and performance of all Buyers’ obligations hereunder, Kistler shall retain a security interest in all of the goods being sold pursuant to this agreement. At Kistler’s request, Buyer shall execute all security agreements and other instruments, and Buyer shall permit Kistler to file any financing statements, in form satisfactory to Kistler, which Kistler deems necessary or desirable to perfect its security interest in the goods being sold pursuant to this agreement.
4. Packing and Shipment Packing and shipment shall be in accordance with good commercial practice.
5. Delivery and Title
a) Delivery shall be FOB Kistler factory, and risk of loss shall pass to the Buyer upon such delivery. Title shall pass upon payment in full.
b) Under no circumstances shall Kistler have any liability whatsoever for delays, loss of use, or for any indirect or consequential damages arising from any delay or loss of use.
c) Kistler shall not be responsible for the failure to perform any obligation arising hereunder due to events beyond its control. These events shall include, but are not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of public enemy, sabotage, strikes, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials or machinery used by Kistler in the manufacture of the goods supplied hereunder, acts of God, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, and acts or regulations or priorities of the Federal, State or local government or branches or agents thereof, government contracts or shipments to purchasers to fulfill government contracts.
d) No claim for shortage in goods shall be allowed unless reported to Kistler, in writing, within ten days after receipt of goods.
a) The Buyer shall not receive, as a result of the sale of goods hereunder, any right or license of any kind under any patent owned or controlled by Kistler, or under which Kistler may be licensed. However, the foregoing provision shall not limit the right of the customer to use and sell such goods, in the event such goods are covered by any such patent.
b) Kistler agrees to defend any suit, foreign or domestic, that any party may institute against the Buyer for alleged infringement of a patent or patents relating to specific devices or apparatus of Kistler’s own design and furnished to the Buyer under this contract. However, this paragraph shall apply only to such infringements as shall arise only from the use (in accordance with applicable specifications) of such specific devices or apparatus themselves and not as a part of any combination of any other devices, apparatus, and/or parts. Furthermore, Kistler’s obligations under this paragraph shall only arise only if the Buyer (a) shall have made all payments then due under this contract; (b) shall give Kistler immediate notice in writing of the alleged infringement and of the institution of any suit; (c) shall permit Kistler to defend such suit; and (d) shall furnish to Kistler all information, assistance, and authority which, in the opinion of Kistler’s attorneys, is necessary to defend such suit. Kistler shall have no liability under this paragraph for any compromise reached without Kistler’s written consent. Unless arising as a direct consequence of litigation which Kistler has itself defended under the terms of this paragraph, Kistler shall have no liability for any patent infringement. Kistler shall also not be required to defend any suits or pay any damages which may arise, directly or indirectly, by reason of the use of any part, device, apparatus, and/or design not furnished by Kistler.
c) Unless agreed to in writing by Kistler, Kistler shall retain sole ownership of all right, title and interest in and to any copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights, whether or not in tangible form, whether or not eligible for protection or registration in the United States or elsewhere (the “Intellectual Property”), which are related to, or produced in connection with, the products or services produced under this agreement.
d) If any of the Intellectual Property is deemed for any reason or at any time to be “work for hire,” Buyer assigns and releases, and hereby agrees to assign and release, any and all right, title and interest in and to such Intellectual Property, including all extensions and renewals thereof, to Kistler, and shall execute and deliver such further instruments to confirm the same as requested by Kistler.
7. Indemnity for Buyer’s Designs
If goods are made, or services are provided, as applicable, in compliance with Buyer’s plans, designs, specifications or instructions, Buyer shall indemnify and hold harmless, and defend Kistler from and against any damage, loss, expense, liability, claims, suits, judgments, decrees and costs caused by or relating to the plans, designs, specifications or instructions for such goods and/or services, including any patent infringement or alleged infringement.
8. Kistler Standard Product Warranty
a) Subject to the provisions of this Section 8, Kistler warrants that each item of its manufacture shall, at the time of shipment to Buyer, conform in all material respects to applicable specifications and drawings, and be free from defects in material and workmanship. Design, essential performance, or other provisions expressly stated to be goals or objectives shall not be deemed to be requirements subject to this Warranty.
b) Unless otherwise specified, Kistler’s obligation under this Warranty shall be limited to repair or replacement, at Kistler’s option, of any item which within twelve months from date of shipment to Buyer is proven to Kistler’s satisfaction to have been nonconforming at the time of shipment. As a condition of this Warranty, Buyer shall (i) notify Kistler in writing of any claimed nonconformance immediately upon discovery, (ii) obtain a return authorization number from Kistler by calling 716-691-5100 or by emailing firstname.lastname@example.org, and (iii) return the item to Kistler for inspection, noting the return authorization number on the packaging for such return. Kistler shall not be responsible for any work done or repairs made by others at any time. All warranties shall immediately become null and void should Kistler, in its sole discretion, determine that any product has been disassembled or has been subject to unauthorized modification, misuse, abuse, neglect accident, improper installation or application, alteration or neglect in use, storage, transportation or handling. Kislter will not accept any returns, of any type, without a return authorization number.
c) Kistler shall not be responsible for the performance of any product which incorporates items manufactured by Kistler unless such performance is expressly designated as Kistler’s responsibility under the terms of the written agreement between Kistler and the Buyer.
d) Kistler shall not be liable for improper use, installation, accidents, operation or maintenance of items manufactured by Kistler, nor for any damage resulting there from, or from negligence on the part of Buyer’s employees or agents.
e) Kistler shall not be responsible for any consequential or incidental damages occasioned by failure of any item supplied by Kistler, or by failure of any item in which a component manufactured by Kistler is incorporated.
f) Unless previously agreed to in writing, Kistler shall not provide field repairs, modifications, or any other field service under this Warranty.
g) EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, THE PRODUCTS AND SERVICES PROVIDED BY KISTLER ARE SUPPLIED ON AN “AS IS” BASIS. THE WARRANTIES CONTAINED HEREIN ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS AND LIABILITIES. WITH RESPECT TO CONTRACTS DIRECTLY BETWEEN KISTLER AND THE U.S. GOVERNMENT OR ANY OF ITS AGENCIES, THE RIGHTS AND REMEDIES AFFORDED TO THE GOVERNMENT OR AGENCY BY THIS STANDARD PRODUCT WARRANTY ARE IN ADDITION TO AND DO NOT LIMIT ANY RIGHTS AFFORDED BY ANY OTHER PROVISION OR PROVISIONS OF THE CONTRACT.
h) NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE PRODUCTS OR SERVICES, THAT IS NOT CONTAINED IN SECTION 8, SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY KISTLER. NO AGREEMENTS VARYING OR EXTENDING THE TERMS OF THE WARRANTY AND LIMITATIONS WILL BE BINDING ON KISTLER UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF KISTLER. KISTLER DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET ANY OR ALL OF THE BUYERS’ PARTICULAR REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE PRODUCTS CAN BE DETERMINED OR CORRECTED. KISTLER PROVIDES NO WARRANTIES FOR THIRD PARTY PRODUCTS OR SERVICES WHATSOEVER.
9. Information, Data and Design
Any proposals, prints, brochures, drawings, designs, data or other information furnished to the Buyer by Kistler before, after, or contemporaneously with the execution of this contract are intended for confidential use by the Buyer, shall remain the property of Kistler , and shall not be used to the detriment of Kistler ’s competitive position.
When given, all such proposals, performance and production projections, prints, brochures, drawings, designs, data and other information are based on Kistler’s knowledge and understanding, but are, in all events, estimates only and are not guaranteed or warranted in any respect. The providing of any design information by Kistler shall not constitute an assumption of design responsibility unless otherwise expressly assumed by Kistler.
10. Services If Kistler provides the Buyer with any services including, without limitation, installation services, all such services shall be performed subject to and in accordance with Kistler’s standard terms, conditions and specifications for such services. Unless otherwise provided in this instrument, Kistler’s fees for such services are outside the scope of any amount quoted or charged for products provided hereunder, and shall be invoiced to the Buyer on a monthly or more frequent basis. All such invoices shall be payable in accordance with the terms of Section 3. Kistler shall bill the Buyer, and the Buyer shall pay Kistler, for such services based on Kistler’s hourly rate for such services as in effect at the time such services are performed. Any changes in the scope of services shall be governed by Section 15.
11. User Licensing Agreement
If applicable, the buyer will be required to sign and forward an executed copy of Kistler’s User License Agreement covering all software products provided by Kistler, whether developed by Kistler or a third party, prior to the commencement of the installation.
12. Software Support & Maintenance
Support outside of the warranty remedies (i.e. customizations) or outside of the warranty period or for versions of software no longer supported by Kistler is subject to payment of the application fees and execution of Kistler’s maintenance and support agreement or professional services agreement (as required). Kistler supports Kistler software releases of the current major version and the latest release of the prior major version. Patches and/or bug fixes will be produced only for currently supported software versions. Kistler reserves the right not to support software releases if a new update is available. In the event that buyer wishes to execute a maintenance and support agreement with Kistler later than at the time of purchase of the applicable product the Buyer shall then be required to also purchase maintenance and support services retroactive to the time of purchase of the applicable product.
13. Enhancement and Upgrade Policy
Software enhancements will be produced only for the current version of software. Hardware upgrades, excluding third party items, will be provided only if they are critical to the operation of the application (as determined by Kistler in its sole opinion). If the Buyer has a valid software or hardware maintenance agreement it will receive product enhancements and upgrades as outlined in such agreement. If Buyer does not have a valid maintenance agreement, the Buyer does not have the right to upgrades but may receive updates at Kistler’s discretion.
14. Cancellation of Contract
Under no condition may the Buyer cancel his obligations under this contract. Any attempt to do so will entitle Kistler, in its sole discretion, to either (a) recover all direct, indirect, and consequential damages arising by reason of such attempted cancellation, or (b) retain as liquidated damages any customer deposit made under this contract.
Buyer shall pay additional charges for changes requested by Buyer which are outside the scope of the original order at Kistler’s standard hourly rate and cost of materials. Such charges shall be in addition to all other amounts payable under this Agreement, despite any maximum budget, contract price or final price identified in the original order. Kistler may extend or modify any delivery schedule or deadlines in the original order as may be required by such changes.
16. Choice of Law
In the event of a dispute regarding any of the terms or conditions contained herein, the parties agree that the laws of New York State will control.
The Buyer’s rights may not be assigned or otherwise transferred to any other person, whether by operation of law or otherwise, without Kistler’s prior written approval.
Waiver by Kistler of any breach of any of these provisions, or its failure to exercise any right, shall not be construed as a waiver of any other breach, or a waiver to exercise any other right.
19. Indemnification by Buyer
Buyer will indemnify Kistler and hold Kistler harmless from any and all claims made by Buyer’s employees or agents for injuries or damages including death, arising from or related to tasks performed under this quotation or contract.
If the Buyer fails to pay any invoice when due, or fails to accept shipments as scheduled, Kistler may, at its option and without prejudice to other remedies, either defer further shipments until the default is corrected or cancel Kistler ’s remaining obligations under the contract.
Buyer represents and warrants that the person who executed the offer which this instrument accepts, or who will execute the Buyer’s acceptance of the offer contained in this instrument, has duly executed the relevant documents on behalf of the Buyer, and is duly authorized to so act.
These commodities, technology, or software are controlled by United States Export Administration (EAR) and /or International Traffic In Arms Regulations (ITAR). Diversion contrary to US Law is prohibited. BUYER INDEMNIFIES KISTLER FROM ANY BREACH OF SUCH REQUIREMENTS AND LAWS FOLLOWING BUYER’S RECEIPT OF COMMODITY, TECHNOLOGY, OR SOFTWARE.