These Terms of Sale (“Terms”) govern the sale of Products and Services and the license of Software by Entech Instruments, Inc. and its subsidiaries (“Entech”). “Product” means any standard hardware or consumables sold or standard Software licensed under these Terms. “Software” means one or more computer programs and related documentation. “Service” means any standard support services to support Products, Software updates and maintenance, or training. “Specifications” means technical information about Products that is published by Entech and in effect on the date Entech ships the order.
a. All orders are subject to acceptance by Entech. Orders are governed by the applicable trade terms specified on the quotation or agreed to by Entech in writing.
b. Prices exclude shipping and handling charges and applicable sales, value added or similar tax payable by Customer unless otherwise stated.
c .For Products without installation included in the purchase price, acceptance occurs upon delivery. For Products with installation included in the purchase price acceptance occurs when the Product passes Entech’s installation and test procedures. If Customer schedules or delays an Entech installation by more than thirty (30) days after delivery, acceptance of the Product will occur on the thirty-first (31st) day after delivery.
d. Payment terms are stated in the quotation or acknowledgement documentation, and are subject to change if Customers financial condition or payment record merits such change. Entech may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Entech Agreement, if after ten (10) days from written notice from Entech, this failure has not been cured.
a. Entech grants Customer a worldwide, non-exclusive license to use Software for internal purposes in accordance with documentation provided with the Software. Entech license terms or third-party license terms included with such documentation will take precedence over these license terms. If the documentation does not include license terms, Entech grants Customer a license to use one copy of the Software on one machine or instrument, or a license as otherwise stated on the quotation.
b. Except as authorized by Entech in writing or as permitted by law, customer will not reverse engineer, reverse compile, or reverse assemble Software, modify or translate Software, or copy Software onto any public or distributed network.
a. Entech warrants the Entech hardware Product against defects in materials and workmanship and that the product will conform to Specifications. Entech warrants that Entech owned standard Software substantially conforms to Specifications.
b. If Entech receives notice of a defect or non-conformance during the warranty period, Entech will, at its option, repair or replace the affected Product. Customer will need to pay shipping expenses for return of said Product to Entech. Entech will pay expenses for shipment of the repaired or replacement Product.
c. THE WARRANTIES IN THESE TERMS ARE EXCLUSIVE, AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. ENTECH SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
a. In no event will Entech, its subcontractors, or suppliers be liable for special, incidental, indirect or consequential damages (including downtime costs, loss of data, restoration costs, or lost profits) regardless of whether such claims are based on contract tort, warranty, or any other legal theory, even if advised of the possibility of such damages. This exclusion is independent of any remedy set forth in these Terms.
b. The limitations set forth in Section 4(a) above will not apply to damages for bodily injury or death.
c. The remedies in these Terms are Customer’s sole and exclusive remedies.
Entech will indemnify and hold Customer harmless from and against any third party claims for (i) bodily injury or death, or (ii) direct damage to tangible property, to the extent caused by Entech’s negligence or willful misconduct in performing its obligations under these Terms, provided that Entech is given prompt written notice and the opportunity to control the defense of the claim or settlement, and subject to the limitation of liabilities set forth in Section 4.
a. The parties agree to comply with applicable laws and regulations. Entech may suspend performance if customer is in violation of applicable laws or regulations.
b. Disputes arising in connection with these Terms will be governed by the laws of the State of California.
c. To the extent that any provision or a portion of any provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain in full force and effect.
d. The United Nations Convention on contracts for the International Sale of Goods will not apply to these Terms.
e. Products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. Entech shall not be liable for any damages resulting from such use.
f. These Terms and any supplemental terms applicable to the order constitute the entire agreement between Entech and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer’s additional or different terms and conditions will not apply.
g. Entech may assign or transfer any of its rights or obligations under the Terms upon notice in connection with a merger, reorganization, transfer, sale of assets or product lines, demerger or spin-off transaction or change of control or ownership of Entech, or its permitted successive assignees or transferees.