Terms and Conditions of Sale
These Terms and Conditions of Sale are entered into as of the last date signed below (the “Effective Date”) between Infrared Cameras Inc., a Texas corporation located at 2105 W Cardinal Drive, Beaumont, TX 77705 (“ICI” or “Seller”) and Buyer. These Terms and Conditions are applicable to the sale of products or services (“Products”) by ICI and its affiliates to Buyer and its affiliates. “Affiliates” means, with respect to either party, any other entity directly or indirectly controlling, controlled by, or under common control with such party. The sale of Products is expressly conditioned upon Buyer’s acceptance of this Agreement.
- CONTROLLING TERMS
Except as provided below, these Terms and Conditions of Sale, together with Seller’s quotation, and the price, quantity and delivery terms contained in Buyer’s purchase order, shall constitute the entire and exclusive agreement between Seller and Buyer (collectively, this “Agreement”). If Buyer submits any other document that contains terms and conditions which are inconsistent with or in addition to this Agreement, then any such term or condition shall not alter this Agreement unless acknowledged in writing, executed by an authorized representative of Seller.
- INTERNAL OR OTHER USE
Buyer represents and warrants that it intends to use the Products for its internal use and is not purchasing the Products with the intent to resell or distribute the Products, unless acknowledged in writing, executed by an authorized representative of Seller.
- PURCHASE PRICE, TAXES, PAYMENT AND CREDIT
Except as otherwise stated in Seller’s quotation, prices are stated in United States of America (“U.S.”) dollars. The purchase price includes the costs of standard packaging of the Products; but excludes: (a) transportation, customs duties, insurance or any other costs or fees that may apply to the sale and delivery of the Products; and (b) any federal, state, municipal or other governmental tax applicable to the sale of the Products to Buyer, if any. All such taxes shall be in addition to the purchase price and be paid by Buyer unless otherwise agreed to or required by law. If Buyer is a resident of Texas, Buyer is required to pay 8.25% sales tax at the point of sale unless otherwise exempt. Buyer acknowledges and agrees that the full purchase price for the Products shall be due and payable upon delivery of Buyer’s purchase order to Seller unless Seller requires or authorizes payment on other terms, acknowledged in writing, executed by an authorized representative of Seller. If Buyer fails to timely pay the purchase price for any Products, or fails to perform any other of Buyer’s obligations hereunder, Seller may, at its option, defer further shipments, revise its terms of payment, cancel the unshipped balance of the Agreement, and/or pursue any other remedy set forth in this Agreement or provided under law.
Except as otherwise stated in Seller’s quotation, Products are shipped via FedEx Ground, in addition to the purchase price and paid by Buyer. Products are delivered Ex-Works (INCOTERMS 2010) Seller’s office, 2105 W Cardinal Drive, Beaumont, Texas 77705. Delivery shall occur, risk of loss shall pass and title (to the extent applicable) shall transfer to Buyer upon delivery of Products to the Ex-Works point (“Delivery”). All Delivery dates contained in Seller’s quotation are estimates and Seller has no liability for any delay in Delivery.
- LIMITED WARRANTY, EXCLUSIONS AND DISCLAIMERS
- Limited Warranty
Unless superseded by individual Product warranty terms set forth in Seller’s quotation, SELLER WARRANTS THAT FROM THE DATE OF DELIVERY AND FOR A PERIOD OF ONE YEAR, THE PRODUCTS WILL CONFORM IN ALL MATERIAL RESPECTS TO ITS SPECIFICATIONS AT THE TIME OF SALE AND BE FREE FROM MATERIAL DEFECTS UNDER PROPER USE AND SERVICE IN ACCORDANCE WITH THE SPECIFICATIONS. “Specifications” means the specifications delivered to Buyer with or in the Product and/or published on ICI’s website for the applicable version of the Product. Buyer agrees that Specifications and other warranty information may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation. This limited warranty extends only to Buyer and is not transferable to any other party and any transfer made in violation of this provision shall be void. The warranty applies only to the unmodified portion of the Products. Buyer is responsible for the results obtained from the use of the Products. Buyer’s sole remedy, and Seller’s sole liability, for any breach of the foregoing warranty shall be to replace or repair any part or parts (or redeliver services) which were delivered in breach of the foregoing warranty.
- Warranty Exclusions and Disclaimers
SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF BUYER HAS NOTIFIED SELLER OF ITS INTENDED USE FOR THE PRODUCTS) OR NONINFRINGEMENT. SELLER FURTHER EXPRESSLY DISCLAIMS ANY ALTERATION, MODIFICATION, REPAIR, ATTEMPTED REPAIR, IMPROPER USE OR STORAGE, IMPROPER MAINTENANCE, NEGLECT, ABUSE, FAILURE TO FOLLOW ANY PRODUCT INSTRUCTIONS, DAMAGE (WHETHER CAUSED BY ACCIDENT OR OTHERWISE), VARIABLES OUTSIDE THE CONTROL OF ICI, OR ANY OTHER IMPROPER CARE OR HANDING OF THE PRODUCTS CAUSED BY ANYONE OTHER THAN SELLER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO BUYER. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. BUYER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. “VARIABLES” INCLUDE OPERATOR SKILLS, NON-ICI EQUIPMENT USED WITH THE PRODUCTS, AND ENVIRONMENTAL AND CLIMATIC CONDITIONS.
- THERMAL IMAGING PRODUCTS WILL NOT DIAGNOSE OR DETECT A VIRUS OR INFECTION. THE PRODUCTS ARE, HOWEVER, BENEFICIAL FOR HUMAN FEBRILE SCREENING AS AN ADJUNCT TO DIAGNOSTIC TESTING.
- Limited Warranty
- PRODUCT RETURNS
IN THE EVENT BUYER CANCELS OR REJECTS A PRODUCT AFTER A PURCHASE ORDER HAS BEEN RECEIVED BY SELLER, A RESTOCKING FEE WILL BE BILLED TO BUYER IN THE AMOUNT OF 25% OF THE TOTAL AMOUNT OF THE PURCHASE ORDER. IF BUYER REJECTS A PRODUCT AFTER IT HAS BEEN SHIPPED, BUYER SHALL, AT BUYER’S EXPENSE, HAVE TEN (10) DAYS TO RETURN THE PRODUCT TO SELLER IN NEW AND UNUSED CONDITION FOR A FULL REFUND SUBJECT TO THE FORGOING 25% RESTOCKING FEE. Buyer will pay the cost of sending Products to ICI in connection with warranty claims, and Seller shall pay the cost of returning to Buyer Products that are repaired or replaced under warranty. Seller reserves the right, in its sole discretion, to decline or to cancel any order for any reason, including if appropriate authorization is not obtained from any governments exercising export authority, or as otherwise provided in Section 9 below, and ICI shall have no liability to Buyer in any way for any such cancellations.
- INTELLECTUAL PROPERTY
Except for the right to use the purchased Products for their intended purpose and to resell the Products as described in Section 2 above, the sale of Products by Seller does not convey to Buyer or any other third party any license, implied or otherwise, under any Intellectual Property. Buyer acknowledges the ownership of and the validity of ICI’s trademarks, brand names, trade names, copyrights, patents, designs, trade secrets, inventions, and similar intellectual property, whether registered or not (collectively, “Intellectual Property”). Buyer will not reverse engineer, reverse compile, deconstruct, synthesize, or extract any element of and/or otherwise discover any source code, algorithms, circuits, structures, architectures, processes, methods or techniques embodied in, or otherwise translate, or reverse assemble the Products in whole or in part, except as expressly permitted by law without the possibility of contractual waiver and Buyer will not: (a) except as permitted in this Agreement, develop any products incorporating any of ICI’s Intellectual Property; nor (b) any improvements or applications related to the Intellectual Property. Buyer shall not apply for the registration of Intellectual Property in any country nor otherwise take any action inconsistent with ICI’s rights in the Intellectual Property. Buyer will not use in any way (including in Buyer’s letterhead or presentation cards) ICI’s trade or business names or trademarks. Buyer acknowledges that ICI shall own all updates or enhancements to Products, whether developed by Buyer or ICI. Buyer shall not do, or cause to be done, any act that contests or in any way impairs any portion of ICI’s and its licensors, right, title and interest in and to the Intellectual Property Rights. Buyer shall not obscure or remove any proprietary rights notices of ICI or its licensors contained in Products, including any trademarks, and copyright notices.If the Products include software from Seller (“Software”), Seller grants Buyer a nonexclusive, perpetual license to use the Software only on and in conjunction with the Products, and all Software as otherwise provided in this Agreement and any license agreement embedded in or delivered with the Software. Buyer agrees that title to the
Software remains with Seller (and its suppliers, if any). Buyer will not use, copy, modify, or distribute the Software except as expressly permitted in this Agreement; use any of the Software components, files, modules, audio-visual content, or related licensed materials separately from the Software; or sublicense, rent, or lease the Software. In addition, Buyer will use the Software only in conjunction with the related Product. This license applies to each copy of the Software that Buyer makes. Buyer may copy the Software for archival or back-up purposes in connection with the use of the Products. Buyer may transfer the license for Supporting Software if transferring the related
Principal Product pursuant to the terms of Section 2.
- CONFIDENTIAL INFORMATION
“Confidential Information” of ICI means any and all confidential information, including third party confidential information, disclosed by ICI or any of its Affiliates (“Disclosing Party”) to the Buyer (“Recipient”) during the term of this Agreement, which, (i) if provided in tangible format, is labelled at the time of such disclosure as “confidential” or bearing a similar legend, (ii) if provided in oral or intangible format, is identified as confidential at
the time of disclosure, or (iii) the Recipient should reasonably understand to be confidential based on the nature or circumstances of the disclosure, including Product pricing, non-public technical information and Products (and related information) identified as prerelease or not generally available. Except as otherwise provided in this Section 8, Recipient agrees that it will (a) hold in confidence and not disclose to any third party any Confidential Information of Disclosing Party, except in accordance with this Section 8; (b) protect such Confidential Information with at least the same degree of care that Recipient uses to protect its own Confidential Information of a similar nature, but in no case, less than reasonable care; and (c) notify Disclosing Party promptly upon discovery of any loss or unauthorized disclosure of Disclosing Party’s Confidential Information.
- COMPLIANCE WITH LAWS
- General Obligations
Buyer agrees to comply with all laws, regulations and executive orders of the U.S. and all other countries applicable to performance of this Agreement, including in connection with the sale, resale, delivery, or re-delivery of the Products (including hardware, software and services) and information hereunder. ICI shall not be liable if any government export authorization is delayed, denied, revoked, restricted or not renewed. Additionally, such delay, denial, revocation, restriction or nonrenewal shall not constitute a breach of this Agreement. ICI shall have no obligation to deliver any Products or information to Buyer in performance of this Agreement except as permitted under applicable laws and may cancel any related Delivery or order if it is unable to perform in accordance with applicable laws.
- Export, Import and Related Obligations
Buyer shall comply with all laws and regulations in Buyer’s jurisdiction and any other jurisdiction related to the import, export, re-export, transfer, shipping, sale, re-sale or use of the Products and information. Buyer agrees that it will not export, reexport, sell, distribute, disclose, release or otherwise transfer any Product or information provided under this Agreement to any country, person, or entity prohibited under applicable laws without U.S. Government authorization. This clause applies regardless of the legality of such a transaction under local law. Neither the country of shipment nor Product country of origin (manufacture) denoted on shipping documentation are confirmation of Free Trade Agreement (“FTA”) eligibility. Rules of origin for each specific FTA differ. FTA eligibility will be certified by Buyer’s trained and qualified FTA specialist and will only be certified as eligible if Products meet the qualification requirements.
Buyer shall promptly notify ICI of any actual or suspected violation of laws, and ICI may immediately suspend Buyer in the event of a violation. Buyer shall secure binding obligations from any independent contractors or other parties who have access to ICI Products or information or otherwise are performing services or activities in connection with this Agreement to comply with the terms of this Agreement.
- Authorization and Recordkeeping
Subject to the delivery terms of this Agreement, ICI will endeavor to obtain U.S. export authorizations as required by applicable laws when ICI is delivering Products or information outside the U.S., and Buyer is responsible for all other required regulatory authorizations, licenses, permits and filings. Each Party shall provide reasonable assistance necessary for the other Party to secure and comply with such authorizations as may be required. Buyer shall maintain all records evidencing its compliance with this Section 9 for the period required by applicable laws and shall make such records available for inspection by ICI upon request.
- General Obligations
- LIMITATION OF LIABILITY
- Limitation of Liability
Regardless of the basis on which Buyer is entitled to claim damages from ICI (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), ICI’s entire liability for all claims in the aggregate arising from or related to each Product purchased by Buyer, or otherwise arising, under this Agreement will not exceed the amount of actual direct damages up to the total amounts paid by Buyer to ICI for the Product that is the subject of the claim. This limit also applies to ICI, all of ICI’s Affiliates and suppliers and is the maximum for which ICI, its Affiliates and suppliers are collectively responsible. UNDER NO CIRCUMSTANCES SHALL ICI, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: DAMAGES CLAIMS BY ANY THIRD PARTY, WHETHER OR NOT THE CLAIMS ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE; LOSS OF, OR DAMAGE TO, DATA; SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
- Other Limits
The limitations and exclusions in this Section apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. Buyer acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
- Limitation of Liability
- GENERAL PROVISIONS
- Contact information
Buyer authorizes ICI and its Affiliates (and their successors and assigns, contractors and business partners) to store and use Buyer’s contact information in connection with ICI’s sale, support and servicing of the Products, and for other lawful purposes.
- Governing Law
This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Texas without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and the parties irrevocably submit to the jurisdiction of those courts. The parties agree that venue in any action arising under this Agreement shall be exclusively in state or federal courts located in the State of Texas.
If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Sale or Assignment
Buyer will not assign or transfer this Agreement without the prior written consent of ICI and any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, Buyer may sell or transfer any Product to any third party (a “Transferee”) as acknowledged in Seller’s quotation; however, the Transferee shall not have any rights under this Agreement and shall not be a third-party beneficiary for any purpose.
- Entire Agreement
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to the sale of Products by ICI and its affiliates to Buyer and its affiliates
- Contact information
- CONTROLLING TERMS