SUNBURST SENSORS, LLC
TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale shall apply to all purchases of goods and/or services and all licenses of software from Sunburst Sensors, LLC, a Montana Limited Liability Corporation, hereinafter referred to as “Sunburst.” The Products sold and/or Services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. No variation or amendment of these Terms and Conditions shall be binding on Sunburst unless confirmed by it in writing.
1. Prices. Unless indicated, prices quoted do not include any excise, use, sales or similar taxes whether Federal, State or local. In lieu of any tax, Customer must provide Sunburst with tax exemption certification. Sunburst retains the right to change pricing upon ninety (90) days’ notice.
2. Domestic Shipments. The Customer shall pay any transportation and handling charges. All freight is shipped Express by carrier of buyer’s selection unless otherwise directed by Customer. Shipments will be prepaid and billed to the customer on each invoice at cost plus 15%, unless the customer chooses to have the system shipped freight collect.
3. International Shipments. All transportation charges, insurance and special packaging shall be paid by the Customer. The Customer must provide a Freight Forwarding Company or specified domestic location for shipment. Units will be packaged according to international shipping requirements. If no Freight Forwarding Company is provided, Sunburst will pick a Freight Forwarding Company. All charges will be prepaid and billed to the customer on each invoice at cost plus 15%.
4. Delivery/Title. All shipments are FOB Origin. Items will be packaged to conform to standard commercial practices of Sunburst. Sunburst shall not be liable for delays in delivery due to causes beyond its reasonable control. Title to software is reserved by Sunburst and shall not pass to Customer. Customer and its’ customers are granted a non-exclusive license to use the software solely in conjunction with products purchased from Sunburst.
5. Final Inspection and Acceptance. Final inspection will be by the Customer at Customer’s facility within ten (10) days of receipt of products or services. Unless Sunburst is notified to the contrary during said period, delivered items shall be presumed to be accepted.
6. Payment Terms. Custom or large orders may likewise require a customer deposit. Sunburst retains the exclusive right to accept or reject any customer submitted purchase order. Payment terms on balance are Net 30 days, subject to company approval. Payment terms for International sales or shipments are letter of credit from a major U.S. bank or bank-wire transfer at time of shipment. Customer hereby agrees to submit reasonable financial information from time to time as required by Sunburst. In the event the Customer fails to make payment when due or defaults, in addition to other remedies, Sunburst may, with or without notice: (1) Suspend credit and delay or stop shipment until terms are met, (2) Alter terms of payment, (3) Cancel any order then outstanding and receive reimbursement for cancellation and/or bill back charges as applicable, (4) Pursue any other remedies available by law. Sunburst shall charge, and Customer agrees to pay, a finance charge commencing on the 31st day after shipment, at 1 1/2% per month or portion thereof on the unpaid balance of overdue accounts. Invoices more than 90 days old may be turned over for collection. Any charges for collection will be paid by Customer.
7. Warranty. SUNBURST WARRANTS HARDWARE PRODUCTS TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 1 YEAR FROM DATE OF SHIPMENT. LIABILITY UNDER THIS WARRANTY IS LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PARTS AND PRODUCTS, WHICH MUST BE RETURNED WITH AN RMA NUMBER OBTAINED FROM SUNBURST PRIOR TO SHIPMENT. SHIPPING COSTS AND RISK OF LOSS SHALL BE BORNE BY CUSTOMER. SUNBURST HAS THE OPTION OF REPAIRING OR REPLACING THE RETURNED ITEM(S). AFTER 1 YEAR, REPAIR AND REPLACEMENT IS OFFERED ONLY UPON PAYMENT BY CUSTOMER OF FULL PRICE OF PARTS AND LABOR FOR SAID REPAIRS.
SUNBURST OWNS ALL PARTS REMOVED FROM REPAIRED PRODUCTS. SUNBURST MAY USE NEW AND/OR RECONDITIONED PARTS IN PERFORMING WARRANTY REPAIRS AND BUILDING REPLACEMENT PRODUCTS. PRICES OF THE PART REPLACED WILL BE AT SUNBURST'S THEN CURRENT STANDARD PRICE.
SUNBURST DOES NOT WARRANT THAT THE PRODUCTS ARE FIT FOR ANY PARTICULAR PURPOSE AND THE WARRANTY HEREIN IS GIVEN IN PLACE OF ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, TRADE USAGE, COURSE OF DEALING OR OTHERWISE INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR PURPOSE, SATISFACTORY QUALITY AND/OR COMPLIANCE WITH DESCRIPTION, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
THE CUSTOMER AGREES THAT, IN RELATION TO THIRD PARTY PRODUCTS PURCHASED THROUGH SUNBURST, WHERE SUCH OF THE PRODUCTS ARE COVERED BY A RELEVANT MANUFACTURER'S WARRANTY, THEN THE WARRANTY SHALL NOT EXTEND TO SUCH PRODUCTS AND SUCH MANUFACTURER'S WARRANTY SHALL BE THE SOLE WARRANTY IN RESPECT OF SUCH PRODUCTS. THE CUSTOMER SHALL UTILIZE THAT WARRANTY FOR THE SUPPORT OF SUCH PRODUCTS AND IN ANY EVENT NOT LOOK TO SUNBURST FOR SUCH WARRANTY SUPPORT.
THIS WARRANTY (AND ANY QUALIFICATION TEST REPORTS SUBMITTED BY SUNBURST TO CUSTOMER) IS NOT, AND SHALL NOT BE CONSTRUED AS A GUARANTEE OF PEAK PERFORMANCE OF THE PRODUCTS SUPPLIED HEREUNDER FOR THE ENTIRE WARRANTY PERIOD.
SUNBURST DOES NOT WARRANT ACCESSORIES AND PERIPHERAL DEVICES THEREOF FURNISHED BY CUSTOMER OR OBTAINED FROM OTHER MANUFACTURERS OR SUPPLIED AT CUSTOMER’S REQUEST AND/OR TO CUSTOMER’S SPECIFICATION, EXCEPT TO THE EXTENT THAT THE ORIGINAL MANUFACTURER OR SUPPLIER THEREOF EXPRESSLY GUARANTEES OR WARRANTS SUCH PRODUCTS OR PARTS THEREOF. SUNBURST ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE ADEQUACY OF ANY DESIGN, SPECIFICATION, DRAWING OR MATERIAL FURNISHED OR SPECIFIED BY CUSTOMER.
THIS WARRANTY DOES NOT COVER DAMAGE, FAULT, FAILURE OR MALFUNCTION DUE TO EXTERNAL CAUSES, INCLUDING ACCIDENT, ABUSE, MISUSE, NEGLECT, PROBLEMS WITH ELECTRICAL POWER, SERVICING NOT AUTHORIZED BY SUNBURST, USAGE AND/OR STORAGE AND/OR INSTALLATION NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, FAILURE TO PERFORM REQUIRED PREVENTIVE MAINTENANCE, NORMAL WEAR AND TEAR, ACT OF GOD, FIRE, FLOOD, WAR, ACT OF VIOLENCE OR ANY SIMILAR OCCURRENCE; ANY ATTEMPT BY ANY PERSON OTHER THAN SUNBURST PERSONNEL OR ANY PERSON AUTHORIZED BY SUNBURST, TO ADJUST, REPAIR OR SUPPORT THE PRODUCTS AND PROBLEMS CAUSED BY USE OF PARTS AND COMPONENTS NOT SUPPLIED BY SUNBURST. THIS WARRANTY DOES NOT COVER ANY ITEMS THAT ARE IN ONE OR MORE OF THE FOLLOWING CATEGORIES: SERVICES; SOFTWARE; EXTERNAL DEVICES, ACCESSORIES OR PARTS ADDED TO THE PRODUCT AFTER THE PRODUCT IS SHIPPED FROM SUNBURST.
‘CONSUMABLE’ PARTS ARE NOT COVERED BY THIS WARRANTY AFTER THE UNIT HAS BEEN DEPLOYED OR USED. THE FOLLOWING PARTS ARE CONSIDERED ‘CONSUMABLES’ AND WILL BE REPLACED AT CUSTOMERS COST (INCLUDING LABOR) IF AND WHEN THE UNIT IS REFURBISHED BY SUNBURST: REAGENT AND BLANK AND ASSOCIATED BAGS AND TUBING, BATTERY PACK, TUNGSTEN LAMP, SILICON MEMBRANE TUBING, ALL COPPER CAGES, SILICON OIL IN PUMP HOUSING, PUMP/VALVE HOUSING DIAPHRAGM, ANODES, DESSICANT BAGS.
REPLACEMENT OR REPAIR OF A PRODUCT OR COMPONENT THEREOF SUPPLIED HEREUNDER DOES NOT EXTEND THE ORIGINAL WARRANTY PERIOD OF THE PRODUCT OR COMPONENT BEING CORRECTED.
8. Extended Warranty and Liability. An Extended Warranty may be purchased for one (1) additional year. Pricing is available from Sunburst.
9. Limitation of Damages. IN NO EVENT WILL SUNBURST BE LIABLE TO ANY PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF SUNBURST’S REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL LICENSOR’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF SERVICE FEES ACTUALLY PAID TO SUNBURST UNDER THIS AGREEMENT. THIS SHALL BE TRUE EVEN IN THE EVENT OF THE FAILURE OF AN AGREED REMEDY.
10. Changes. Sunburst reserves the right to modify or change the product, in whole or part, at any time prior to delivery in order to include improvements deemed necessary by Sunburst, but without incurring any liability to modify or change any equipment previously delivered.
11. Returns. For non-OEM products, Sunburst will issue a credit to the Customer, to be honored for future purchases, when any purchased Sunburst product is returned in new condition, less a 15% restocking fee.
12. Export Restrictions. The Customer acknowledges that the Products licensed or sold hereunder, which may include technology and software, may be subject to the export control laws and regulations of the United States ("U.S.") and agrees to abide by those laws and regulations. Under U.S. laws and regulations, the products purchased may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. The Customer further acknowledges that the products may also be subject to the export laws and regulations of the country in which the products are received, and that the Customer will abide by such laws and regulations. The Customer understands that applicable requirements or restrictions may vary depending on the products delivered and may change over time and that, to determine the precise controls applicable to the products acquired, it may be necessary to refer to relevant laws and regulations.
13. Confidentiality. Customer shall treat as confidential all information obtained from which is marked "confidential" or the equivalent and shall not divulge such information to any persons (except to Customer’s own employees and then only to those employees who need to know the same) without Sunburst’s consent provided that this clause shall not extend to information which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious.
14. Indemnity. Customer shall indemnify, hold harmless, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys fees and costs and expenses of suit arising out of: (i) any claim arising out of improper use of Sunburst products (ii) any claim based on the negligence, omissions, or willful misconduct of Customer or any of its employees, agents or representatives, and (iii) any claim alleging that products provided pursuant to Customer’s design or specifications infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes. Customer shall not settle any such suit or claim without SUNBURST's prior written approval. Customer agrees to pay or reimburse all costs that may be incurred by SUNBURST in enforcing this indemnity, including attorneys' fees.
15. Intellectual Property. For purposes of this Agreement, "Intellectual Property" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by Sunburst, alone or with others, whether or not they result from or relate to the sale of products hereunder. All Intellectual Property shall at all times be and remain the sole and exclusive property of SUNBURST. Customer agrees not to reverse engineer Sunburst products or decompile Sunburst software programs.
16. Bankruptcy and Security Interest. Customer hereby grants to Sunburst a security interest in the products sold pursuant to this agreement to secure the payment due for the goods and/or services. Sunburst may terminate this Agreement and any license granted hereunder if the Customer becomes insolvent, or has filed against it a petition under any bankruptcy code (or any similar petition under any insolvency law of any jurisdiction), proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes assignment or trust mortgage for the benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to any property or business of Customer.
The Terms and Conditions set forth herein constitute the entire understanding between Sunburst and Customer and supersedes all prior communications or agreements written or oral, and any terms and orders which are not in strict accordance with the provisions set forth herein, shall not be binding on Sunburst and shall not be considered applicable to any sale.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
No forbearance, delay or indulgence by Sunburst in enforcing the provisions of these Terms and Conditions shall prejudice or restrict Sunburst’s rights, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for Sunburst is exclusive of any other right, power or remedy available to Sunburst and each such right, power or remedy shall be cumulative.
The headings to the clauses of these Terms and Conditions are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Montana, excluding its conflict of law rules. Jurisdiction and venue over all controversies arising out of, or relating to, this Agreement shall be in Missoula County, Montana. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.
Neither party shall be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the party's reasonable control: difficulties in obtaining raw materials, labor, fuel, parts or machinery, power failure, telecommunications failures and disruptions, general unavailability of transport or breakdown in machinery/equipment.
In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.