SCIENTIFIC DATA SYSTEMS, INC
GENERAL TERMS AND CONDITIONS
Effective October 1, 2007
The items to which these General Terms and Conditions refer are the items supplied or sold by Scientific Data Systems, Inc. (hereinafter referred to as “SDS”) to the purchaser thereof (hereinafter referred to as “Buyer”). These items are sold only under the following General Terms and Conditions:
(a) All prices are expressed in
(b) All prices are exclusive of costs of transportation and insurance and federal, state and local use, sales, property (ad valorem) and similar taxes and license fees, import duties and the like. Buyer agrees, by purchase of an item, to pay such costs, taxes, fees and duties, and where appropriate, report the same. When applicable, such costs, taxes, fees, and duties will appear as separate items on SDS' invoice.
(a) Payment for all items is net cash
(b) Interest from due date until payment at the maximum rate allowable by law but in any event not more than eighteen percent (18%) per annum will be charged on invoices unpaid sixty (60) days after due date. If unpaid amounts are collected through legal proceedings or an attorney, Buyer shall pay reasonable attorneys' fees and court costs. SDS shall never be entitled to receive, collect or apply as interest any amount in excess of the highest non-usurious rate of interest permitted by applicable law (the “Maximum Rate”). In the event that SDS ever receives, collects or applies as interest any amount in excess of the Maximum Rate, the amount which would be excessive interest shall be deemed to be a partial payment on the amount Buyer owes to SDS, or if Buyer does not owe any amount to SDS, any remaining excess shall be paid to the Buyer, and in such event, SDS shall not be subject to any penalties provided by any law for contracting for, charging, taking, reserving or receiving interest in excess of the Maximum Rate.
3. Hold harmless terms.
(A) BUYER AGREES TO UNCONDITIONALLY PROTECT, DEFEND, INDEMNIFY AND
HOLD SDS, ITS EMPLOYEES, OFFICERS, AGENTS, AFFILIATES AND SUBSIDIARIES HARMLESS
FROM AND AGAINST ALL DEMANDS, CLAIMS, SUITS, CAUSES OF ACTION, COSTS, EXPENSES,
AND DAMAGES THAT SDS MAY AT ANY TIME SUFFER OR SUSTAIN OR BECOME LIABLE FOR
UNDER ANY LEGAL THEORY, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY,
DECEPTIVE TRADE PRACTICE, NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY IN
TORT, BY REASON OF ANY ACCIDENTS, DAMAGES OR INJURIES, EITHER TO PERSONS OR
PROPERTY OR BOTH, OF BUYER, OF ANY THIRD PARTY(S), OR OF SDS OR ANY PERSONS OR
FIRMS AFFILIATED WITH SDS, THAT ARISE OUT OF OR RELATE TO THE USE OR MISUSE OF
ANY ITEM SOLD HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY USE OR MISUSE OF THE
ITEM BY BUYER'S OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, AFFILIATES,
SUBSIDIARIES, OR ANY OTHER PERSON OR ENTITY TO WHOM THE ITEM HAS SUBSEQUENTLY
BEEN SOLD OR TRANSFERRED. BUYER FURTHER AGREES THAT SDS, ITS OFFICERS,
EMPLOYEES, AGENTS, AFFILIATES AND SUBSIDIARIES, SHALL NOT, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO BUYER BY WAY OF ANY INDEMNITY THEORY, WHETHER BASED
ON STATUTE, INCLUDING BUT NOT LIMITED TO, CHAPTER 82 OF THE
(B) IN ADDITION TO THE INDEMNITY GRANTED BY BUYER TO SDS AND BUYER'S WAIVER OF INDEMNITY FROM SDS IN THE ABOVE SUBPARAGRAPH (A), BUYER FURTHER AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD SDS, ITS EMPLOYEES, OFFICERS, AGENTS, AFFILIATES AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ALL DEMANDS, CLAIMS, SUITS, CAUSES OF ACTION, COSTS, EXPENSES, AND DAMAGES THAT SDS MAY AT ANY TIME SUFFER OR SUSTAIN OR BECOME LIABLE FOR UNDER ANY LEGAL THEORY, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, DECEPTIVE TRADE PRACTICE, NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY IN TORT, BY REASON OF ANY ACCIDENTS, DAMAGES, OR INJURIES, EITHER TO PERSONS OR PROPERTY OR BOTH, OF BUYER, OF ANY THIRD PARTY(S), OR OF SDS OR ANY PERSONS OR FIRMS AFFILIATED WITH SDS, THAT ARISE OUT OF OR RELATE TO THE USE OR MISUSE OF ANY ITEM SOLD HEREUNDER THAT IS CAUSED BY OR RESULTS FROM THE SOLE OR CONCURRENT NEGLIGENCE OF SDS, ITS OFFICERS, AGENTS, EMPLOYEES, AFFILIATES OR SUBSIDIARIES, IN THE DESIGN, MANUFACTURE, MARKETING, SALE OR DISTRIBUTION OF AN ITEM SOLD HEREUNDER. IT IS AGREED THAT BUYER'S INDEMNITY OBLIGATION UNDER THIS SUBPARAGRAPH (B) SHALL BE LIMITED TO THE SUM OF $500,000 AND SHALL BE SUPPORTED BY LIABILITY INSURANCE COVERAGE PROVIDED BY BUYER THAT IS SUFFICIENTLY ENDORSED TO WAIVE ANY AND ALL CLAIMS BY THE UNDERWRITERS OR INSURERS AGAINST SDS.
4. Delivery Dates and Excusable Delays.
All shipment and/or delivery dates are subject to SDS' availability schedule. SDS will make every reasonable effort to meet any delivery date(s) quoted: however, SDS will not be liable for its failure to meet any quoted delivery date(s) or for any delay in performance due to any unforeseen circumstances or any causes beyond SDS' control including, without prejudice to the foregoing generality, strike, lockout, riot, war, fire, acts of God, accident, failure or breakdown of parts necessary for completions, subcontractor, supplier, Buyer caused delays, inability to obtain labor, materials or manufacturing facilities, or compliance with any law, regulation or order, whether valid or invalid, of any governmental body or instrumentality thereof. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. Whenever such circumstances or causes have been remedied, SDS will make and Buyer shall accept performance hereunder. No penalty clause of any kind shall be effective. As used herein, performance shall include, without limitation, fabrication, assembly, shipment, delivery and warranty repair or replacement, as applicable.
All items shall be packed, if appropriate, for shipping and storage in accordance with standard commercial practices. See paragraph 8 for return shipment packaging.
(a) All prices are net FOB
(b) Normally SDS will ship in accordance with Buyer's shipping instructions. In the absence of shipping instructions or unsuitable Buyer's shipping instructions, SDS reserves the right to ship by an appropriate method.
7. Passage of Title.
Title to items sold and risk of loss and damage shall pass to Buyer upon delivery by SDS to common carrier for shipment to Buyer, or to buyer directly, as the case may be.
8. Changes, Cancellations and Returns.
(1) SDS reserves the right to change design(s), materials and specifications, and to discontinue
item(s) without any notice or liability to Buyer.
(2) If Buyer issues a change order or cancels an order, Buyer shall be liable to pay to SDS the whole cost and loss incurred by SDS resulting from such change or cancellation, as such is determined by SDS, which shall include all costs, direct and indirect, plus a pro rata proportion of normal profit.
(3) No credit shall be given for any item returned unless returned with the prior approval of an authorized representative of SDS authorizing the return by issuing the Buyer a Return Material Authorization (RMA). Only sales managers, major department managers, or officers of SDS are authorized to approve return of items. Risk of loss or damage in respect of any item returned with SDS' authorization will remain with Buyer until redelivered to SDS. A charge of not less than fifteen percent (15%) or such larger amount as SDS may consider reasonable in the circumstances, with a minimum of $10.00 per item, will be charged by SDS on all items returned to pay for cost of inspection, repacking, handling, credit arrangements, etc. SDS shall not be responsible for holding or accounting for any items returned without prior authorization by SDS unaccompanied by the required RMA. If freight and other transportation costs are not prepaid on any returned item, the cost thereof will be deducted from the credit issued. No credit will be given on any non-standard item manufactured at the request of Buyer, or to the individual specifications of Buyer.
9. Other Manufacturer's Equipment.
If any items sold to Buyer by SDS contain any parts or materials obtained by SDS from any other party, these parts or materials are sold to Buyer AS IS. AS TO ANY SUCH PARTS OR MATERIALS, SDS EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BUYER'S REMEDY FOR ANY FAILURE OR DEFECT IN SUCH PARTS OR MATERIALS IS LIMITED TO REPAIR OR REPLACEMENT AS PROVIDED IN PARAGRAPH 12 BELOW. FURTHER, WITH RESPECT TO SUCH PARTS OR MATERIALS, SDS DISCLAIMS LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10. Use and Acceptance of Item.
Buyer warrants, by purchase of an item, that Buyer is familiar with the item and its proper use. Before using any item, Buyer shall give the item reasonable and prudent examination and/or tests to determine the suitability of the item for Buyer's intended use. Buyer shall be deemed to have accepted any item by the Buyer's use of the item, or in any event, no later than thirty (30) days after the first to occur of the date of shipment or delivery unless, before that time, SDS received written notice of any defect or nonconformity from Buyer.
11. Assistance to Customer.
At Buyer's request, SDS may make SDS employees available to Buyer to train Buyer to operate items supplied by SDS or to perform other actions as agreed between Buyer and SDS. If SDS does make SDS employees available to Buyer, it is only on the conditions that the employees shall be under the direction and control of Buyer, Buyer shall supply all necessary equipment and supplies for the proper performance of the services performed by the employees, and SDS shall have no liability whatever to Buyer for the employees during the time that the employees are under Buyer's direction and control. In addition, Buyer agrees that it will be responsible to SDS for any acts or occurrences or omissions of the employees, and agrees to the terms and conditions of paragraph 13 below with respect to the acts of such employees.
12. Repair of Items.
Repairs to any item supplied by SDS and repaired at Buyer's request outside the normal working hours of 8:00 am to 5:00 pm, (Monday through Friday) shall be charged by SDS at double the labor rate otherwise chargeable.
13. Limited Warranty and Remedy.
(a) SDS is not liable for incidental, consequential, lost profits, direct damages, or special damages. UNDER NO CIRCUMSTANCES WILL SDS BE LIABLE FOR LOST PROFITS, DIRECT DAMAGES, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED BY SDS TO BUYER OR ANY THIRD PARTIES.
(b) Buyer's remedies are limited to repair and if necessary, replacement. Buyer's remedies for any and all breaches of any nature, including without limitation breaches of contract and warranty, are limited to the remedies of repair and replacement as specifically stated in this agreement. The remedies provided herein are the exclusive remedies of Buyer for failure of SDS to meet its warranty obligations, whether claims of Buyer are based on contract, strict liability in tort or otherwise, and upon expiration of the applicable warranty period, all obligations of SDS for breach of warranty will terminate. If SDS is unable or unwilling to repair or replace, or if repair or replacement does not remedy the nonconformity, SDS and Buyer shall negotiate an equitable adjustment in the contract price.
(c) Disclaimer of warranties not expressly stated.
THE WARRANTIES SET
(d) Limited warranty. SDS warrants each item sold by it to Buyer (excluding any part or parts which are components to the item and are subject to Paragraph 8 above concerning parts supplied by others) to be free from defects in materials and workmanship if, and only if, all of the following conditions are met:
(1) The item claimed to be defective has been exposed only to normal storage, use, and service, has been reasonably maintained, has not been subjected to misuse, negligent use, or accident which caused the item to suffer a defect, and has not been repaired or altered except by an authorized representative of SDS;
(2) The item claimed to be defective has been returned at
Buyer's expense, using a Return Material Authorization (RMA) and the return
procedures of §8 (Changes, Cancellations and Returns), to SDS' plant at
(3) The alleged defect in the item is actually caused by a defect in materials or workmanship originally supplied by SDS as opposed to materials or workmanship originally supplied by others; and
(4) The item is not one that is expendable in normal use and which has been expended in normal use.
(5) Subject to the limitations herein, this warranty is valid for 180 days after delivery to original purchaser, except Subsurface Electronic perforating equipment is warranted only to be in working order upon delivery to original purchaser.
(6) No electronic equipment will be warranted that has been modified or repaired by someone other than SDS' approved representative. Equipment that has had its serial number or temperature indicator altered, defaced or removed will not be warranted.
(e) Limited remedies available under warranty. SDS' liability under the limited warranty described above shall be limited to the repair or replacement of the items sold hereunder. SDS will repair or replace the item at no cost to Buyer, but the decision as to whether to repair or replace will be solely that of SDS'. In addition, Buyer shall pay or reimburse SDS for the cost for wear and tear to each item arising from normal use and service, or at SDS' option, Buyer shall refund an equitable proportion of the purchase price. Repairs or replacement items are only warranted for the remaining un-expired portion of the warranty period.
(f) Notice of claims required. All claims under the warranty set out in this agreement must be made promptly after the alleged defect occurs and must be received by SDS within the warranty period. The claim must include the item's description, part number, serial number (if any), date of shipment or delivery and a full description of the circumstances giving rise to the claim. Any item returned under claim of defect shall be sent prepaid by appropriate transportation. Buyer is responsible for all damage or loss resulting from improper packing or handling, and for any loss or damage occurring during the transmission of the item to SDS. If any item is returned and is found not to be defective, SDS will notify Buyer and, at Buyer's option, will return the item to Buyer at Buyer's expense. Further, in this event, Buyer will reimburse SDS for all costs incurred in testing and examining the item.
(g) Note: This paragraph 13 does not apply to any software which may be furnished by SDS. In such cases, paragraph 14 applies.
14. Software License, Warranty, Fees.
(a) SDS hereby grants to Buyer: a non-exclusive, non-transferable right to use the computer software program licensed under this document in machine-readable, object code form and any modifications made and generally distributed by SDS thereto ("Software"), but only in connection with the configuration of the goods and operating system for which the Software is ordered and for the end-use purpose stated in the related SDS operating documentation. Buyer agrees that neither it nor any third party shall modify, reverse engineer, decompile or reproduce the Software, without SDS’s prior written consent, except for making a single copy for backup or archival purposes in accordance with the related SDS operating documentation, and provided that SDS's confidential and proprietary legend is included. Buyer shall not provide or otherwise make available the Software in any form or any portion thereof to any person other than Buyer’s employees who agree to maintain the confidentiality of same. Except to the extent that the parties otherwise agree in writing, Buyer’s license to use the copy of such Software shall terminate upon breach of this license or the Contract by Buyer, including, without limitation, breach of payment or confidentiality obligations. All copies of the Software are the property of SDS, and all copies for which the license is terminated shall be returned to SDS promptly after termination.
(b) SDS may in its sole discretion authorize Buyer (such as a SDS distributor or original equipment manufacturer) to transfer this software license and warranty to a third party in the case where the entirety of said license is transferred (“SDS-authorized transferee”). Such authorization to transfer shall be in writing and signed by a SDS authorized representative. SDS-authorized transferee must have the same rights and obligations as Buyer, except it shall not have the right to transfer such license. Such transferee must assume Buyer’s obligations hereunder.
(c) SDS warrants that on the date of shipment of the Software only to Buyer or Buyer’s SDS-authorized transferee hereunder that: (1) the Software media contain a true and correct copy of the Software and are free from material defects; (2) SDS has the right to grant the license hereunder; and (3) the Software will function substantially in accordance with the related SDS operating documentation. SDS disclaims any warranty that the operation of the Software will be uninterrupted or error free, meet Buyers requirements or work in conjunction with any other software of Buyer. This warranty does not apply to software delivered by SDS but produced by others. The warranty for software produced by others shall be the warranty as stated by the software producer.
(d) If within one (1) year from date of initial installation (but not more than one hundred eighty (180) days from date of delivery by SDS to Buyer) of Software, Buyer or its SDS-authorized transferee hereunder discovers that the Software is not as warranted above and promptly notifies SDS in writing, within this period of time, of the nonconformity, and if SDS cannot correct the nonconformity or deems correction to be commercially impracticable or prohibitively expensive, Buyer’s and Buyer’s SDS-authorized transferee’s exclusive remedies, at SDS’s option and expense, are: (1) replacement of the nonconforming Software; or (2) termination of this license and a refund of an equitable, pro rata share of the Contract price or license fee paid.
(e) This warranty will apply for the period specified in (d) above, provided that: (1) the Software is not modified, changed, or altered by anyone other than SDS or its designated suppliers, unless authorized by SDS in writing; (2) there is no change by anyone other than SDS to the goods for which the Software is ordered; (3) the goods are in good operating order and are installed in a suitable operating environment with appropriate hardware; (4) the nonconformity is not caused by Buyer, Buyer’s SDS-authorized transferee, or any of their agents, servants, employees, or contractors, or any third party; (5) Buyer or Buyer’s SDS-authorized transferee promptly notifies SDS in writing, within the period of time set forth in (d) above, of the nonconformity after it is discovered; and (6) all fees for the Software due to SDS have been paid. SDS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
(f) Buyer and successors of Buyer are limited to the remedies specified in this paragraph 14 and shall have no others for a nonconformity in the Software. Buyer agrees that these remedies provide Buyer and its successors with a minimum adequate remedy and are their exclusive remedies, whether Buyer’s or successors’ remedies are based on contract, warranty, tort (including negligence), strict liability, lost profits, direct damages, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, operating documentation, installations, or non-conformities from any cause.
(g) Unless otherwise provided in this document, the fees for this Software license are included in the purchase price of the goods. Any subsequent modifications or enhancements to the Software made by SDS are, at SDS’s option, subject to a fee.
(a) All of these General Terms and Conditions including Buyer's agreements to hold SDS harmless and indemnify SDS shall also apply in favor of all employees, agents, affiliates, and subsidiaries of SDS.
(b) Order confirmation by SDS of any item to be supplied by SDS shall constitute SDS' offer to sell the item in accordance with the terms, provisions and conditions of this Agreement. Buyer's acceptance of SDS' offer shall be limited to the terms, provisions and conditions of this Agreement. Any proposed acceptance by Buyer under terms, provisions or conditions that vary from, conflict with, or modify the terms, provisions and conditions of this Agreement shall not be effective. Neither SDS' commencement of performance under this Agreement nor delivery of any item shall be construed as or deemed to be acceptance by SDS of any term, provision or condition that varies from, conflicts with, or modifies the terms, provisions and conditions contained in this Agreement.
(c) This Agreement constitutes the entire understanding and agreement of SDS and Buyer with respect to the sale of the item or items described in this Agreement, and contains all of the covenants and agreements of SDS and Buyer with respect thereto. Acceptance of the item by Buyer will evidence Buyer's acknowledgement that no representations, inducements, promises or agreements, oral or written, have been made by SDS or anyone acting on behalf of SDS, which are not contained herein, and any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement may not be altered, changed or amended except by an instrument in writing signed by SDS and Buyer.
(d) Failure by SDS to enforce any or all of these General Terms and Conditions in any case or cases shall not constitute a waiver of or preclude subsequent enforcement of any or all of such General Terms and Conditions.
(e) Any attempted or purported assignment or transfer of any of the rights, duties or obligations herein contained shall render such attempted or purported assignment or transfer null and void, provided that SDS may perform and fulfill all or any of its obligations hereunder by or through any subsidiary and affiliate. If any provision of these terms and conditions is capable of more than one construction, the provision shall be interpreted in the manner that will render it valid. If any provision is determined to be void, the determination shall not affect any other provision and all other provisions not construed to be void shall remain in full force and effect.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR WITH
REGARD TO ITS INTERPRETATION OR BREACH, SHALL BE SETTLED BY BINDING ARBITRATION
IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. Unless otherwise required by applicable law, the parties hereto
agree to arbitrate their differences in
17. Limited Statute of Limitations.
AS PERMITTED BY
18. Choice of Law.
ANY AGREEMENT OR TRANSACTION TO WHICH THESE GENERAL TERMS AND
CONDITIONS APPLY SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
19. Time is of the Essence. Time is of the essence and material to the terms herein.
18. Use Agreement.
Use of the items supplied or sold by SDS to Buyer shall constitute agreement of Buyer to these General Terms and Conditions. The terms and conditions herein contained represent the final and complete agreement of the parties and no term(s) or condition(s) in any way modifying or changing the provisions contained herein shall be binding upon SDS unless made in writing and executed by an officer of SDS. No modifications or any of these terms shall be accomplished by SDS's shipment of goods following receipt of Buyer's purchase order, shipping request or similar forms containing printed terms and conditions additional to or different from the terms herein. If any term, clause or provision contained herein is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect or dismiss the validity of any other term, clause or provision herein contained.