PROCESS INSIGHTS TERMS AND CONDITIONS OF SALE

1. Scope

• These terms and conditions are an offer on the part of Process Insights (“Seller”) to the party to whom the Quotation, Offer, Contract, or other similar document (“Agreement”) is submitted, (“Buyer”).  Process Insights’ agreement to sell/service goods to/for Buyer is expressly and solely conditioned on Buyer’s assent to the terms and conditions contained here within. As hereinafter used, “goods” shall mean any systems, analyzers, parts, services, contracts, or otherwise related goods/efforts/documentation/etc. quoted to Buyer.  
• For the purposes of accounting, paperwork may include corporate factories names as entities rather than Process Insights. Any such entity under the umbrella of the parent company Process Insights, for here within, are also covered under the nomenclature of “Seller.”  Any such corporate factory name is in practice Process Insights, and may be noted as another business name while DBA Process Insights depending on the paperwork of record.
• If any documentation related to an offer or is followed by any competing Terms and Conditions or similar stipulations different or additional to/from those within, those terms shall not be considered, and Process Insights expressly rejects any such different or additional terms and conditions. Any Terms and Conditions set forth other than this most recent version of T’s and C’s are also expressly rejected.  Placement of any order or service request confirms assent to the most recent update of the Process Insights T’s and C’s.

2. Prices

• Prices quoted are F.O.B. Process Insights, from the factory of manufacturing, unless otherwise stated on the face of the accompanying Quotation and are for goods produced to commercial tolerances. Prices do not include any federal, state or local taxes. Wherever applicable, such taxes will be added to the invoice to be paid by Buyer. Where packaging other than standard packaging is necessary, the expense will be charged to the Buyer. Process Insights reserves and the Buyer grants to Process Insights a security interest in any goods sold to the extent of the invoiced amount to secure payment of Buyer’s obligation. If Buyer defaults, it agrees to make the goods available so that Process Insights may peaceably repossess. A copy of the invoice may be filed with the appropriate office at any time as a financing statement. At Process Insights’ request, Buyer will execute any instrument Process Insights requires to perfect its security interest. Prices on any undelivered goods covered by this contract are subject to further increase (a) due to increase in cost to Process Insights of materials used in the manufacture, (b) as a result of restrictions or regulations imposed under any agreements, codes, or licenses made or issued pursuant to federal or state law, decrees or orders, or (c) as a result of increase in labor costs, providing that this clause shall not be operated to fix a price in violation of any price regulations of the United States Government. Process Insights shall notify Buyer of any price increase arising for any of the above reasons. Any quantity discount applicable to the sale covered by this Quote shall apply only to sales of goods made by Process Insights, and such discount shall be computed solely on the basis of goods sold to Buyer by Process Insights. Any early payment discount on the face of this document shall be on the purchase price only.

 3. Delivery

•  Shipping dates are approximate, and time shall not be of the essence in this contract, provided, that Process Insights accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. If shipment is delayed for over one hundred and eighty (180) days, Buyer may reject the goods only if the Buyer will sustain substantial damage as a result of such delay. Unless otherwise provided, Process Insights shall have the right to make shipment in installments, and delay in shipment of any installment or failure to ship any installment shall not relieve Buyer of its obligation to accept remaining installments. Where special delivery is required, the expense involved will be charged to Buyer. Risk of loss of products transfers to Buyer when goods are loaded for shipment.

4. Terms of payment

• Unless otherwise provided, payment shall be net cash thirty (30) days from the date of invoice. Goods exported from the USA may be subject to a down payment, with the balance payable through an Irrevocable Letter of Credit established through and confirmed by a bank acceptable to Process Insights. The obligation to make payment shall continue without regard to any warranty obligations made hereunder by Process Insights and without regard to whether Buyer has made any inspection of the goods pursuant to these terms and conditions. Process Insights shall have the right, in its sole discretion, to require payment before shipment or payment via letter of credit in the event that it determines that Buyer is delinquent in payment or will exceed its credit limit. A finance charge of one and one half percent (1 1/2%) per month (or the highest rate allowed by law) will be applied to any outstanding balance. Buyer shall pay to Process Insights any reasonable expenses incurred by Process Insights for collection from Buyer of money due and unpaid, including reasonable attorney’s fees and related costs. Buyer agrees to authorize its creditors to disclose to Process Insights information concerning Buyer’s credit worthiness, upon Process Insights’ request. Process Insights shall retain title to goods sold until Buyer has paid for the goods in full. By submitting any purchase order or other document, either prior to or subsequent to the date of Process Insights’ Quote, Buyer represents that it is solvent for the purposes of U.C.C. Section 2- 702 and that it is not insolvent as defined by U.C.C. Section 1-201 (23). In the absence of written notification of insolvency, the transmission of any writing by Buyer to Process Insights during the course of performance of the contract will be understood to constitute a written representation of continued solvency for the purposes of U.C.C. Section 2- 702(2).

 5. Cancellation

• Any order is final upon Acknowledgement of the order by Process Insights and may only be cancelled with prior written approval by Process Insights, which approval may be granted or withheld in Process Insights’ sole discretion. Any order cancellation is subject to the following charges with respect to all cancelled units of Goods:
• • the contract price of all Goods completed prior to such cancellation;
  • the burdened cost of all raw materials (including long lead time items) in Process Insights’ possession or on order to complete the order;
  • the burdened cost of all raw materials incorporated into and all labor applied to work in progress, plus a charge for loss of profit; and
  • other reasonable cancellation charges including, but not limited to, non-recurring engineering expenses, cancellation costs payable by Process Insights to its suppliers, and any other costs incurred by Process Insights relating to such cancellation.
• Process Insights will use commercially reasonable efforts to reduce such cancellation costs by reallocating materials to other orders and/or returning surplus material to, or canceling orders with, its suppliers. In no event shall the Buyer be liable for more than the contract price of the cancelled Goods.

 6. Force majure

• Process Insights shall not be held responsible for any delay or failure to perform its obligations hereunder in whole or in part due, directly or indirectly, to matters outside of Process Insights’ control, including without limitation, war, epidemics, flood, acts of God, accidents, shortage of transportation, terrorism, blockades, embargoes, federal, state, municipal, or any other governmental action or regulation, strikes or other labor troubles, fire, damage to, or destruction in whole or in part of merchandise or manufacturing plant, lack of, or inability to obtain, materials, labor, fuel or supplies, restraining orders or injunctions of any court or judge, or any other causes, contingencies or circumstances within or without the United States. Occurrence of any of the above shall, without liability to Process Insights, excuse Process Insights from further performance of this Agreement or, at its election, extend the time of performance. If any shipment is delayed six (6) or more months, either party shall have the right by written notice to the other to cancel that shipment and the balance of this contract and, in such event, neither party shall be liable to the other for any losses or damages arising out of such cancellation.

7. Delays

•  If Buyer is unable or unwilling to accept delivery of goods at time of completion, Process Insights shall invoice Buyer for the full purchase price. If Process Insights is able to store the goods in its own facilities, Process Insights shall have the right to impose on Buyer a reasonable charge for handling and storage. Goods held for Buyer under this provision shall be held at Buyer’s sole risk. Process Insights shall not be responsible for any loss or damage to the goods during such storage or for any indirect, incidental, or consequential damages resulting from any damage or loss to the goods while stored on Buyer’s behalf. Unless otherwise expressly provided, Process Insights shall retain title to, and possession of, any models, drawings, patterns, dies, molds, jigs, fixtures and tools relating to this contract.
• The Seller shall not be liable for delays in deliver or failure to manufacture or deliver (1) due to causes beyond its reasonable control, or (2) due to acts of God, acts of the Buyer, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, war, riot, delays in transportation or car shortages, or (3) inability due to causes beyond it reasonable control to obtain necessary labor, materials, components, or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.

8. Warranty

• Process Insights warrants that at the time of shipment its goods shall be substantially free of material defects in workmanship and material under normal use and service and shall substantially conform to contract specifications and be within the limits and sizes published by Process Insights, subject to Process Insights’ standard tolerances for variations. This warranty is inapplicable to the extent Seller has selected materials or designed the product. If Process Insights has provided a sample to Buyer that differs from contract specifications and Buyer has approved such sample, Process Insights’ warranty will be satisfied if the goods either substantially (i) conform to the sample or (ii) conform to the contract specifications and fall within the limits and sizes published by Process Insights, subject to standard tolerances for variations. Process Insights shall have no liability to Buyer if Buyer’s purchase order omits a specification and Process Insights fills the order using goods or a design that materially conforms to a standard or customary specification. In no event shall Process Insights be liable for any defective good if examination discloses that the good has been taxed beyond its normal capacity or the defective condition of such good was caused by misuse, abuse, improper installation or application, improper maintenance or repair, alteration, accident or negligence in use, storage, transportation or handling. ALL OTHER WARRANTIES, DIRECT OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANT-ABILITY, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.

9. Safety and health information

• Upon request by Buyer, Process Insights will provide applicable information (including but not limited to Material Safety Data Sheets) and warnings concerning the safety and health aspects of its goods. Buyer agrees to communicate such information and warning to Buyer’s employees, agents, contractors and customers, and to require such persons to further communicate such information and warnings to all persons that they may reasonably foresee will be exposed to or handle such goods

10. Buyer’s remedies

• Buyer agrees to inspect the goods prior to acceptance and upon receipt and to give written notice within 15 days to Process Insights of the precise nature of any claim that the goods breach any warranty provided herein. Process Insights will be afforded a prompt opportunity to inspect the goods. If Buyer shall fail to give such notice or provide such opportunity to inspect, the goods shall be deemed accepted and to conform with the terms of the contract and Buyer shall be bound to accept and pay for the goods in accordance with the terms of the contract. Buyer expressly waives any rights Buyer may have to revoke or refuse acceptance after such 15 day period. If Buyer provides Process Insights with notice within fifteen (15) days of learning of a possible warranty breach and with reasonable opportunity to inspect and if the claim is for a breach of warranty, Process Insights may, at its option, either repair or replace said nonconforming goods or repay the price thereof. If Process Insights requests the return of the nonconforming goods, no obligation for breach of warranty shall arise unless the goods have been returned to Process Insights within thirty (30) days after such request is made. Buyer’s failure to provide timely notice shall constitute a waiver of its claims. The aforesaid obligation to repair or replace defective or nonconforming goods or repay the purchase price thereof is expressly agreed by the parties to be the limit of Process Insights’ liability and Buyer’s sole and exclusive remedy. IN NO EVENT SHALL PROCESS INSIGHTS BE LIABLE FOR LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES FOR PERSONAL INJURIES.

11.  Indemnification

•  Buyer, if a reseller, shall include in its terms and conditions of sale an effective disclaimer of warranties and limitations of liability at least as restrictive as those contained herein. In any event, BUYER ASSUMES ALL RISKS AND AGREES TO INDEMNIFY AND HOLD PROCESS INSIGHTS HARMLESS AGAINST ALL CLAIMS AND LIABILITY (INCLUDING LIABILITY BASED ON A CLAIM THAT PROCESS INSIGHTS IS NEGLIGENT OR STRICTLY LIABLE) ARISING: (i) OUT OF ANY PROPERTY MADE IN WHOLE OR IN PART FROM THE GOODS SUPPLIED UNDER THE TERMS OF THIS CONTRACT AND (ii) AS A RESULT OF USE OR POSSESSION OF THE GOODS SUPPLIED UNDER THE TERMS OF THIS CONTRACT. Any advice furnished by Process Insights as to any use of the goods by Buyer, is offered “as is” without warranty of any kind, is gratuitous and shall not affect the limitations on Process Insights’ warranties or Buyer’s agreement to indemnify. Buyer acknowledges that this Agreement is for the purchase of goods, not services, and that Process Insights shall therefore have no liability to Buyer for any harm or loss caused by advice received by Buyer from any of Process Insights’ agents or employees. With respect to goods manufactured solely to Process Insights’ designs or specifications, Process Insights shall defend any action brought against Buyer claiming that such goods are an infringement of any patent, trademark or copyright and Process Insights will pay any costs and damages finally awarded against Buyer in any such action, under the following conditions:
• • Process Insights is notified promptly in writing by Buyer of any notice of such claim;
  • Process Insights has sole control of the defense in any action on such claim and all negotiations for its settlement and compromise; and
  • should Process Insights’ products become, or in Process Insights’ opinion are likely to become, the subject of a claim of infringement of a patent, trademark or copyright, Process Insights will have the option of replacing or modifying the product.
• Buyer shall indemnify, defend and hold Process Insights harmless against any damages, costs or losses resulting from any suit or proceeding brought for infringement of patents, copyrights or trademarks or for unfair competition (i) relating to the use or sale of any of Process Insights’ goods in any combination, method, or process and/or (ii) arising out of compliance by Process Insights with Buyer’s designs, specifications or instructions, including claims for patent or copyright infringement. If a claim is brought against Process Insights by an agent or employee of Buyer, Buyer agrees to defend, indemnify and hold Process Insights harmless from and against any and all liability, loss, damages, and expense relating to the claim.

 12.  Setoff 

• Process Insights shall have the right to setoff all amounts due to Process Insights against payments owed by Process Insights whether arising out of this or any other contract between Seller and Process Insights, its subsidiaries, or affiliates.

 13. Data

• Data supplied by the Seller to the Buyer shall be conclusively presumed to pertain to items, components, or processes developed at Seller’s private expense, and no rights in such data or in any inventions, discoveries, patents, trademarks, or copyrights shall pass to the Buyer. Correspondingly, if data is furnished by the Buyer, no rights therein will pass to the Seller provided, however, that Seller may copy and use such data to the extent necessary to furnish the items or services called for hereunder.

 14. Applicatoin of law

• The validity and effect of this order, as well as its interpretation, operations, and effect shall be determined exclusively by the principles of law and equity of the State of the product’s manufacturing.
• If any of the terms and conditions of this order or any part thereof should be declared illegal by any court of law, such part of such term or terms shall be considered deleted from this order, the remaining to be unaffected and in full force and effect.

 15. General

• Assignment and Delegations—Buyer will not assign any rights or delegate any duties under the Agreement without the written consent of Process Insights.
• Statute Of Limitations—Buyer agrees that any action of any kind by the Buyer against Process Insights must be brought within one (1) year of the date of delivery.
• Arbitration—All controversies and claims arising out of or relating to the contract may (at Process Insights’ option) be settled by arbitration in the State of Process Insights’ place of business as shown on the face of the accompanying Quotation, in accordance with the then applicable Commercial Rules of the American Arbitration Association, and judgment upon any award thereon may be entered in any court having jurisdiction.
• Modification and Termination—This contract shall not be modified or terminated unless expressly agreed by both parties in writing. No waiver or any default hereunder shall be deemed a waiver of the obligation of future compliance, and any provision waived shall remain in full force and effect. In addition to its other remedies, Process Insights may cancel any unfulfilled part of the contract without any liability and without notice if Buyer fails to pay amounts due or Buyer shall become bankrupt, insolvent, makes an assignment for the benefit of creditors or a receiver is appointed for Buyer, or Buyer is acquired or sold in whole or in part.
• Sole Agreement—Unless otherwise agreed in writing, this Acknowledgement/ Invoice constitutes the entire agreement between Process Insights and Buyer, and supersedes any previous agreement, representation or warranty, whether express or implied, regarding the goods. Buyer acknowledges that no representations, understandings, conditions, or agreements have been made or relied upon other than those specifically stated in this Agreement.
• Construction—The contract will be governed by the laws of the State of Process Insights’ place of business, as shown on the face of the accompanying quotation.
• Export Compliance—These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the identified ultimate consignee or end-user. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.